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TMI Blog2015 (2) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake in terms of section 254(2) of the Act. We may at this stage also clarify that we are not going by the certificate by ICICI Equity Fund and the order by the hon ble court being now produced before us by the Revenue in-as-much as the same were not before the tribunal, nor have been shown to us as having formed part of the tribunal s record. We accordingly admit the said mistake, recalling the impugned order for deciding the question of the applicability of section 40A(2)(b) in terms of the said provision. For A.Y. 2003-04, the tribunal, vide its order dated 20.08.2010, issues no specific finding in the matter. Rather, it proceeds to discuss the issue on merits, issuing definite findings of fact per para 22 of its order, which have since been held by the hon ble high court as not giving rise to any substantial question of law. However, to the extent it endorses the findings by the tribunal for A.Y. 2002-03, i.e., when it states that the tribunal (for A.Y. 2002-03) has considered all the aspects of the matter, it stands inflicted with the same infirmity as observed by us for A.Y. 2002-03, i.e., qua the legal issue raised by the Revenue per its instant applications. We, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the amounts involved, being at a disallowance of ₹ 369.29 lacs by the A.O. and its restriction to ₹ 184.65 lacs by the ld. CIT(A), i.e., at 50% of the claim amount. 2.2 The Revenue has now moved miscellaneous applications for the relevant years, stating that of the issued capital, represented by 300 lac equity shares of ₹ 10/- each in the assessee-company, 299.993 lac shares are held by ICICI Trusteeship Services Ltd. (as trustee of ICICI Equity Fund) and 700 shares are held by nominees of ICICI Bank Ltd. It is thus clear that M/s. ICICI Equity Fund is the main investor in the assessee-company, holding 99.67% shares. Further, ICICI Equity Fund is a trust set up under the Indian Trust Act, 1892 in March, 2000, and ICICI Bank Ltd. is the only investor in the said Fund since inception (PB pg. 12). Further, ICICI Limited, ICICI Capital Services Ltd. and ICICI Personal Financial Services stand merged with ICICI Bank Limited in pursuance of an order of the hon'ble High Court of Gujarat at Ahmedabad in Company Petition No. 21 of 2002 connected with Company Application No. 360 of 2001 w.e.f. 30 March, 2002 (PB pgs. 13-17). On these grounds it is submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the order by it on record. The order by the tribunal having merged with that by the hon'ble jurisdictional high court, no case for admitting the Revenue's application or disturbing the findings by the tribunal would arise. 4. We have heard the parties, and perused the material on record. The first issue that confronts us is whether there has been any mistake either of fact or of law (or of both) in the impugned order, i.e., as claimed by the Revenue per its instant applications. The Revenue, vide its instant applications, has impugned the tribunal's finding with regard to the non-applicability of section 40A(2)(b) of the Act. The relevant part of the impugned order, i.e., for A.Y. 2002-03 reads as under: "14. We find force in the submission of the learned AR that section 40A is not applicable as the assessee does not fall in category (b) of section of sub-section (2) of section 40A of the Act. The learned AR referred page 14 of the paper book reads as under: "A SHARE CAPITAL Authorised 40,000,000 Equity Shares of ₹ 10/- each 400,000,000 400,000,000 Issued, Subscribed and Paid up 30,000,000 Equity Shares of ₹ 10/- each 300,000,000 300,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee, the payee, ICICI Cap. Services Ltd., and ICICI Bank Ltd. are related concerns, to which the provision of section 40A(2)(b) are clearly applicable. The said finding could only be disturbed or reversed on some factual basis, which we find as absent. There is, accordingly, no basis for the tribunal to have held that section 40A(2)(b) would apply qua the impugned payment/s to ICICI Capital Services Ltd. (I-Caps), which thus cannot be said to be on a firm basis. It is trite law that no court or tribunal can, vide its action or non action, cause prejudice to any party before it. There has thus occurred a mistake in terms of section 254(2) of the Act. We may at this stage also clarify that we are not going by the certificate by ICICI Equity Fund and the order by the hon'ble court (at PB pgs.12,13-17), being now produced before us by the Revenue in-as-much as the same were not before the tribunal, nor have been shown to us as having formed part of the tribunal's record. We accordingly admit the said mistake, recalling the impugned order for deciding the question of the applicability of section 40A(2)(b) in terms of the said provision. For A.Y. 2003-04, the tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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