TMI Blog2015 (11) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... has been sealed by the Tribunal in its order. The assessee may have had some legal grievances against the order passed u/s 263, but, once the same was confirmed by the Tribunal, the right forum for hearing of these grievances would be before Hon’ble High Court. The law does not permit us to go into this issue, at this stage. - Decided against assessee. - ITA NO.4270/Mum/2013 - - - Dated:- 30-9-2015 - Shri Amit Shukla, Judicial Member, and Shri Ashwani Taneja, Accountant Member For The Assessee : Shri Yogesh Thar Shri Deepak Jain (AR) For The Revenue : Shri S. S. Kumaran (DR) ORDER Per Ashwani Taneja (Accountant Member): The present appeal has been filed by the assessee against the order of Ld. Commissioner of Income Tax (Appeals)-13, Mumbai dated 22.02.2013 for the assessment year 2006-07, decided against the assessment order passed by the Assessing Officer u/s 143(3) of the Act. The assessee has raised following grounds of appeal: GROUND NO. I: DISALLOWANCE OF DEDUCTION UNDER SECTION 35D OF THE ACT AMOUNTING TO ₹ 3,27,82,000/- IN RESPECT OF AMORTIZATION OF EXPENDITURE INCURRED ON THE INITIAL PUBLIC OFFER OF EQUITY SHARES: 1. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed u/s 143(3) r.w.s 263. In the meanwhile, the Assessee had also filed an appeal to the ITAT against the aforesaid order passed u/s 263 of the Act by the CIT. The ITAT passed order dated 25-01-2012, confirming the order passed by CIT, u/s 263 of the Act. In para 14 of the said order, the ITAT also held that the Assessee being a bank was not an Industrial Undertaking . During the appellate proceedings before the Ld CIT(A), the Assessee had filed detailed submissions. 2.2 Ld CIT(A) considered the submissions of the Assessee and facts of the case, but confirmed the order of the AO on the ground that since the ITAT in Assessee's own case has held that the Assessee was not an Industrial Undertaking , therefore, the Assessee was not entitled for deduction u/s 35D of the Act. The disallowance made by A.O. was therefore upheld by him. 2.3. Being aggrieved the assessee has filed this appeal before the Tribunal, against the impugned order of Ld. CIT(A). 2.4. During the course of hearing, Ld DR relied upon the orders of the lower authorities and submitted that since Tribunal has already decided this matter in the assessee s own case and held that assessee was not eligible u/s 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 727) and (vii) In case of difference in views of Delhi High Court and Madras High Court, the one which is more favourable to the Assessee should be followed in Bombay jurisdiction. Reliance was placed upon the judgment of CIT vs. Vegetable Products Ltd. (88 ITR 192) (SC). 2.6. We have heard both the sides on this issue. Before going into the arguments made by the Ld Counsel of the assessee, we find that, this issue has already been decided in assessee s own case by the ITAT while upholding the order u/s 263, for this very assessment year. Relevant observations of the Tribunal, in assessee s own case, in ITA no.4002/Mum/2011 for assessment year 2006-07 dated 25.01.2012, passed against the order u/s 263 are reproduced below: 10. We have heard both the sides, perused the records and gone through the orders of the authorities below. The assessee is a company carrying on banking business in India. During the relevant year an expenditure of ₹ 16.39 crore was incurred on IPO of equity shares and a deduction of 1/5 amounting to ₹ 3.27 crore was claimed u/s 35D. The claim of the assessee was allowed by the Assessing Officer. Subsequently, after perusal of the 7 Yes Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to an industrial undertaking engaged in manufacture or production of an article or a thing. The assessee s submission in that case was that as long as the assessee used these computers for production of articles and things it could be regarded as an industrial undertaking and this submission of the assessee was accepted by the Court. From the discussion up to now, it follows that:- a)Industrial undertaking is to be given the meaning which is understood in common parlance, and b)Which should be interpreted widely, At the same, we have to bear in mind that the expression is to be construed in the context of section 35D of the Act and it is to be further discerned as to whether the business of construction activity would be treated as an industrial undertaking or not. 13. The Hon ble Delhi High Court after considering the decision of the Emirates Commercial Bank (supra) and other case laws, ha s held that commonsense approach will have to be adopted and those undertakings would qualify as industrial undertaking which are involved in manufacturing activity . 14. In the present case, the assessee is a bank, incurred expense on issue of IPO equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to make such an enquiry. The order becomes erroneous because such an inquiry has not been made and not because there is anything wrong with the order if all the facts stated therein are assumed to be correct. 16. In so far as the another argument of the learned counsel for the assessee is that the Finance Act, 2008 has omitted the word industrial is concerned, the learned CIT held that the amendment relates to substantive provision and not procedural and therefore, it applies prospectively. We agree with the said view of the CIT. In view of the above, the order passed by the CIT u/s 263 of the Act, is hereby upheld. 2.7. We find that the Tribunal has already held, on merits as well, that the assessee is not eligible to claim deduction u/s 35D. After this order from the Tribunal in assessee s own case, for this very assessment year, the issue under consideration i.e. allowability of claim u/s 35D, has attained fait accompli . In our considered view, this issue is no more open before us for our consideration. Ld. CIT had directed the AO in his order passed u/s 263, to make disallowance of deduction u/s 35D claimed by the assessee. The action of passing the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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