Dy. CIT Circle-3, Malegaon V. Sh. Rameshwar E. Kalantri, Nashik

ITA 1003/PUN/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49747 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 20-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SU DHIR JUDICIAL MEMBE R AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER ITA NO. 1003 /PN/200 9 (ASSTT. YEAR : 200 3 - 04 ) DY.COMMISSIONER OF INCOME TAX APPELLANT CIR CLE - 3, MALEGAON VS. SHRI. OMKARESHWAR R. KALANTRI , RESPONDENT MARKET YARD, YEOLA DIST - NASIK, PAN AATPK 4236H C.O. NO. 35/PN/2010 (ARISING OUT OF ITA NO. 1003/PN/2009) (ASSTT. YEAR : 2003 - 04) SHRI. OMKARESHWAR R. KALANTRI, CROSS OBJECTOR MARKET YARD, YEOLA DIST - NASIK, PAN AATPK 4236H VS. DY.COMMISSIONER OF INCOME TAX RESPONDENT CIRCLE - 3, MALEGAON DEPARTMENT BY : SHRI HEMANT KUMAR LEUVA ASSESSEE B Y : SHRI K. SRINIVASAN ORDER PER I.C. SUDHIR JM THE REVENUE HAS QUESTIONNED FIRST APPELLATE ORDER DELETING THE PENALTY LEVIED U/S. 271(1)(C ) AT RS. 26,53,310/ - 2. AT THE OUTSET OF HEARING, THE LD A.R. POINTED OUT THAT THE AMO UNT OF PENALTY IN QUESTION IS BELOW RS. 3,00,000/ - , HENCE PRESENT APPEAL IS NOT MAINTAINABLE IN VIEW OF THE LATEST CBDT INSTRUCTION NO. 3 DATED 9.2.2011 READ WITH SECTION 268A OF THE C.O.35/PN/2010 SHRI OMKARESHWAR R. KALANTRI A.Y. 2003 - 04 2 I.T.ACT, 1961. IN OTHER WORDS, THE REVENUE SHALL NOT FILE THE APPEAL AGA INST FIRST APPELLATE ORDER HAVING TAX EFFECT UPTO RS. 3 LACS. HE ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS INCLUDING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT, HOLDING THAT THE APPEAL PREFERRED BY THE REVENUE HAVING TAX EFFECT BELOW RS. 3 LA KH IS NOT MAINTAINABLE AND IT IS ALSO APPLICABLE IN THE PENDING CASES IN VIEW OF THE OBJECT OF THE REVENUE BEHIND THE SAME : 1. CIT V/S. MRS. P.S. JAIN & CO., ITR 179/1991, ORDER DATED 2.8.2010 OF HONBLE DELHI HIGH COURT. 2. ITO V/S. SHRI ASHOK G. DHAND HARIAI, ITA NO. 2460/MUM/2010 (A.Y.2005 - 06), ORDER DATED 28 FEBRUARY 2011. 3. CIT V/S. DELHI RACE CLUB LTD., ITA NO. 128/2008, ORDER DATED 3.3.2011 (DELHI HIGH COURT). RESPECTFULLY FOLLOWING THE DECISION TAKEN BY THE HONBLE DELHI HIGH COURT IN THE CASE O F CIT V/S. MRS. P.S. JAIN & CO., (SUPRA), AND ITO V/S. SHRI ASHOK G. DHANDHARIAI (SUPRA) ON THE ISSUE, WE FIND THAT IN THE PRESENT APPEAL, THE PENALTY AMOUNT HAVING BELOW RS. 3 LAKH, THE PRESENT APPEAL IS NOT MAINTAINABLE. 3. THE APPEAL IS ACCORDINGLY DIS MISSED. C.O. NO. 35/PN/2010 (ASSESSEE) 4. THE ASSESSEE HAS FILED PRESENT CROSS OBJECTION IN SUPPORT OF THE FIRST APPELLATE ORDER DELETING THE PENALTY IN QUESTION. IN VIEW OF OUR ABOVE FINDING IN ITA NO. 1003/PN/2009 THAT THE PRESENT APPEAL FILED BY THE REVENUE IN C.O.35/PN/2010 SHRI OMKARESHWAR R. KALANTRI A.Y. 2003 - 04 3 BREACH OF THE INSTRUCTIONS OF THE CBDT IS NOT MAINTAINABLE, THE CROSS OBJECTION HAS BECOME INFRUCTUOUS. THE SAME IS DISMISSED AS SUCH. 5. I N RESULT, BOTH THE APPEAL AND CROSS OBJECTIONS ARE REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL, 2011 SD/ - SD/ - (D.KARUNAKARA RAO) ACCOUNTANT MEMBER (I.C. SUDHIR) JUDICIAL MEMBER PUNE: DATED: 29TH APRIL, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APP ELLA NT 2. THE RESPONDENT 3. THE CIT (CENTRAL), NAGPUR 4. THE CIT - (A) I, NASHIK 5. THE D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE