BRIJESH V SHAH, MUMBAI V. ITO 23(2)(1), MUMBAI

CO 78/MUM/2015

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2385 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 23-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA VIJAY
• Assessee Lawyers: S M BANDI
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 834/MUM/2014 (ASSESSMENT YEAR: 2009-10) ITO 23(2)(1), MUMBAI APPELLANT VS. SHRI BRIJESH V. SHAH RESPONDENT C-33, JAMUNA CHS LTD. SAME GURUJI NAVGAR, NAVGAR ROAD, MULUND (E), MUMBAI - 81 CO NO. 78/MUM/2015 (ASSESSMENT YEAR: 2009-10) SHRI BRIJESH V. SHAH APPELLANT C-33, JAMUNA CHS LTD. SAME GURUJI NAVGAR, NAVGAR ROAD, MULUND (E), MUMBAI - 81 VS. ITO 23(2)(1), MUMBAI RESPONDENT PAN: AVQPS 4520C /BY APPELLANT : SHRI S.M. BANDI, /BY RESPONDENT : SHRI CHANDRA VIJAY, DR /DATE OF HEARING : 16.08.2016 /DATE OF PRONOUNCEMENT : 23.08.2016 ITA NO.834/MUM/14 & CO 78-M-15 A.Y. 2009-10 [ITO V/ S. SHRI BRIJESH V. SHAH] PAGE 2 ORDER PER SHAILENDRA KUMAR YADAV, J.M: BOTH THE APPEAL AS WELL AS THE CROSS OBJECTION HAS BEEN FILED AGAINST THE ORDER OF THE CIT(A)-33, MUMBAI DA TED 12.11.2013. 2. SO FAR THE APPEAL FILED BY THE REVENUE IS CONCER NED; WE NOTED THAT IN THIS CASE THE TAX EFFECT ON THE INCOM E UNDER DISPUTE IS LESS THAN RS.10 LAC. WE FURTHER NOTED TH AT THE CENTRAL BOARD OF DIRECT TAXES VIDE CIRCULAR NO. 21/ 2015 DATED 10 TH DECEMBER, 2015 FILE NO.279 OF MISC. 142/2007 ITJ (PT) HAS ISSUED THE DIRECTION IN SUPERSESSION OF THE INS TRUCTION NO.5/2014 DATED 10.07.2014 IN PURSUANCE WITH THE PO WER INTERESTED U/S.268A OF THE INCOME TAX ACT THAT NO A PPEAL SHOULD BE FILED BEFORE THIS TRIBUNAL IN CASE TAX EF FECT DOES NOT EXCEED RS.10 LAC. THE TAX EFFECT IN THIS REGARD M EANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSE SSED AND THE TAX THAT WHAT HAVE BEEN CHARGEABLE HAD SUCH TOT AL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED. THIS CIRCULAR FURTHER STATES THAT TAX WILL NOT INCLUDE ANY INTERE ST THEREON THE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. WE FURTHER NOTED THAT UNDER PARAGRAPH 10 WHICH IS REPRODUCED AS UNDE R, IT HAS BEEN MENTIONED IN THE CIRCULAR THAT THIS INSTRUCTIO N WILL APPLY EVEN TO THE PENDING APPEALS. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE SPECIFI ED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. APPEA LS BEFORE ITA NO.834/MUM/14 & CO 78-M-15 A.Y. 2009-10 [ITO V/ S. SHRI BRIJESH V. SHAH] PAGE 3 THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTI ONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 3. IN THE IMPUGNED CASE, WE NOTED THAT THE TAX EFFE CT ON THE ISSUE UNDER DISPUTE DOES NOT EXCEED RS.10 LAC. IN V IEW OF THIS FACT AS PER THE INSTRUCTION, THE REVENUE IS NOT SUP POSED TO PRESS THE APPEAL. WE, THEREFORE, DISMISS THE APPEAL FILED BY THE REVENUE IN LIMINE WITHOUT GOING INTO THE MERITS OF THE CASE AS IN OUR OPINION THE CIRCULAR ISSUED BY CBDT ARE BIND ING ON THE DEPARTMENTAL OFFICERS IN VIEW OF THE PROVISION OF S ECTION 268A(1) OF THE ACT. THE SAID VIEW HAS BEEN TAKEN BY HONBLE SUPREME COURT IN THE CASE OF NAVNEET LAL ZAVERI VS. AAC 56 ITR 198 (SC). WE ACCORDINGLY DISMISS THE APPEAL FIL ED BY THE REVENUE. 4. COMING TO THE CROSS OBJECTION, ITAT, NEW DELHI A BENCH IN CASE OF ACIT VS. AJAY KALIA IN ITA NO.245/DEL/20 14 WITH C.O. NO.254/DEL/2014 HELD THAT EVEN AFTER DISMISSAL OF REVENUES APPEAL ON ACCOUNT OF TAX EFFECT, CROSS OB JECTIONS ARE SURVIVED. SO, FOLLOWING SAME REASONING, WE ADJUDICA TE THE CROSS OBJECTION ON MERIT. 4.1 AT THE OUTSET OF HEARING, LD. AUTHORIZED REPRES ENTATIVE POINTED OUT THAT IN THIS CASE ENHANCEMENT HAS BEEN DONE WITHOUT GIVING NOTICE TO ASSESSEE. THIS FACT HAS N OT BEEN DISPUTED BY REVENUE. SO, WE ARE NOT INCLINED TO CO NCUR WITH THE FINDING OF CIT(A), WHEREIN CIT(A) HIMSELF HAS E NHANCED THE ADDITION WITHOUT GIVING NOTICE TO THE ASSESSEE. AC CORDINGLY, ENHANCEMENT IN QUESTION IS SET ASIDE. ASSESSING OF FICER IS DIRECTED ACCORDINGLY. ITA NO.834/MUM/14 & CO 78-M-15 A.Y. 2009-10 [ITO V/ S. SHRI BRIJESH V. SHAH] PAGE 4 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND THAT OF CROSS OBJECTION IS ALLOWED AS INDICATED ABO VE. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 23/08/2016 TRUE COPY PRABHAT KESARWANI / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. %&%'( ) / CONCERNED CIT 4. )- / CIT (A) 5.-./00'(, '( , %& / DR, ITAT, MUMBAI 6./4567 / GUARD FILE. BY ORDER / , / % , '( , %&