AMIT JAGANNATH RAUT, THANE V. ASST CIT CIR I, THANE

CO 196/MUM/2013

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3156 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 04-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: SATISH B BOOB
• Keywords: Audit objection; Tax effect
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE D.T. GARASIA, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.4889/M/2012 ASSESSMENT YEAR: 2009-10 ASST. COMMISSIONER OF INCOME TAX, CIRCLE -1, THANE, MIDC, VARDAAN BLDG., LOWER GROUND FLOOR, THANE (W) VS. SHRI AMIT JAGANNATH RAUT, A-103, AUDUMBER HSG. SOC., POKHRAN ROAD, NO.1, SHIVAJI NAGAR, THANE PAN: AJTPR 6309P (APPELLANT) (RESPONDENT) CO NO.196/M/2013 (ARISING OUT OF ITA NO.4889/M/2012) ASSESSMENT YEAR: 2009-10 SHRI AMIT JAGANNATH RAUT, A-103, AUDUMBER HSG. SOC., POKHRAN RD. NO.1, SHIVAJI NAGAR, THANE PAN: AJTPR 6309P VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE -1, THANE, MIDC, VARDAAN BLDG., LOWER GROUND FLOOR, THANE (W) (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SATISH B. BOOB, A.R. REVENUE BY : SHRI RAJESH KUMAR YADAV, D.R. DATE OF HEARING : 01.08.2017 DATE OF PRONOUNCEMENT : 20.09.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE ABOVE TITLED APPEAL BY THE REVENUE AND THE CROS S OBJECTION BY THE ASSESSEE HAVE BEEN PREFERRED AGAINST THE ORD ER DATED 30.04.2012 OF THE COMMISSIONER OF INCOME TAX (APPEA LS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEAR 2009-10. ITA NO.4889/M/2012 CO NO.196/M/2013 SHRI AMIT JAGANNATH RAUT 2 2. AT THE OUTSET, THE LD. A.R. HAS SUBMITTED THAT T AX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS. 10 LACS AN D THE CBDT CIRCULAR NO. 21/2015 IS APPLICABLE TO THIS APPEAL, HENCE, THIS APPEAL BE DISMISSED AS NOT PRESSED IN TERMS OF CBDT CIRCUL AR NO 21/2015 DATED 10/12/2015. 3. THE CBDT VIDE CIRCULAR DATED 10/12/2015 (SUPRA) HAS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DE PARTMENT BEFORE THE TRIBUNAL AND FURTHER VIDE PARA 10 OF THE SAID C IRCULAR IT HAS BEEN CLARIFIED THAT SAID CIRCULAR IS APPLICABLE RETROSPE CTIVELY TO THE PENDING APPEALS ALSO. THE RELEVANT PORTION OF THE CIRCULAR DATED 10/12/2015 (SUPRA) IS REPRODUCED BELOW:- 3.HENCEFORTH APPEALS/SLPS SHALL NOT BE FILED IN CAS ES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HE REUNDER:- SL. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMITS (IN RS.) 1. BEFORE APPELLATE TRIBUNAL 10,00,000 2. BEFORE HIGH COURT 20,00,000 3. BEFORE SUPREME COURT 25,00,000 .................................................. ................................................... ..................... 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT W OULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEA L IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'DISPUTED ISSU ES'). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT W HERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHA RGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHA LL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS ITA NO.4889/M/2012 CO NO.196/M/2013 SHRI AMIT JAGANNATH RAUT 3 INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX O N DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFEC T WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EF FECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR C IRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN A SSETS/ BANK ACCOUNTS. 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE S HALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OTHER THAN INCO ME TAX. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTIN UE TO BE GOVERNED BY RELEVANT PROVISIONS OF STATUTE & RULES. FURTHER, FILING OF APPEAL IN CASES OF INCOME TAX, WHERE THE TAX EFF ECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUCH AS THE CASE OF R EGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT, 1961, SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 A BOVE AND DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWAL NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. (UNDERLINED FOR EMPHASIS BY US) 4. THE TAX EFFECT IN DISPUTE IN THE CAPTIONED APPEA L IS STATED TO BE BELOW THE MONETARY LIMIT OF RS.10.00 LACS AS SPECIF IED IN THE CBDT ITA NO.4889/M/2012 CO NO.196/M/2013 SHRI AMIT JAGANNATH RAUT 4 CIRCULAR DATED 10/12/2015 (SUPRA). THE LD. DR HAS N OT BROUGHT OUT ANY MATERIAL TO SUGGEST THAT THE CAPTIONED APPEAL I S PROTECTED BY ANY OF THE CIRCUMSTANCES PRESCRIBED IN PARA-8 OF THE CI RCULAR DATED 10/12/2015 (SUPRA). HE THEREFORE HAS STATED THAT IN VIEW OF THE ABOVE CIRCULAR OF THE CBDT, THE CAPTIONED APPEAL BE TREAT ED AS WITHDRAWN/NOT PRESSED. HENCE, WITHOUT GOING INTO T HE MERIT OF THE ISSUES RAISED IN THE PRESENT APPEAL, THIS APPEAL IS TREATED AS DISMISSED AS WITHDRAWN/NOT PRESSED AS ITS FILING BEING IN CON TRAVENTION OF THE CBDT CIRCULAR DATED 10/12/2015(SUPRA) READ WITH SEC TION 268A OF THE INCOME TAX ACT. 5. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. CO NO.196/M/2013 6. SINCE THE DEPARTMENTAL APPEAL IS DISMISSED, THE ASSESSEE HAS NOT PRESSED FOR THE CROSS OBJECTION. HENCE, THE CR OSS OBJECTION OF THE ASSESSEE IS DISMISSED. 7. IN THE RESULT, ASSESSEES CROSS OBJECTION AS WEL L AS DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.09.2017. SD/- SD/- ( G. MANJUNATHA) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.09.2017. * KISHORE, SR. P.S. ITA NO.4889/M/2012 CO NO.196/M/2013 SHRI AMIT JAGANNATH RAUT 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.