ACIT 25(2), MUMBAI V. MANGESH T SAWANT, MUMBAI

ITA 1053/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84008 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Keywords: Tax effect
• Section: 14A

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.1053/MUM/2013 (A.Y. 2009-10) ACIT-25(2) C-11, PRATYAKSHAKAR BHAVAN R.NO.108, BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI-400 051. / VS. SHRI MANGESH T. SAWANT A-004, PRATHMESH HORISES NEW M.H.B. COLONY BORIVALI(W) MUMBAI-400 092. ( ! / // / APPELLANT) ( '# ! / RESPONDENT) P.A. NO.AAGPS 0518 M ! $ % $ % $ % $ % /APPELLANT BY : SHRI VIJAY KUMAR BORA '# ! $ % $ % $ % $ % /RESPONDENT BY : NONE $ &'( / / / / DATE OF HEARING : 28.10.2014 )*+ $ &'( / DATE OF PRONOUNCEMENT : 28.10.2014 ,- ,- ,- ,- / / / / O R D E R PER JOGINDER SINGH (JM) : THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 7/11/2012 OF THE LD. FIRST APPELLATE AUTHORITY REDU CING THE ADDITION OF RS.12,44,223/- TO RS.35,432/- BY OBSERVING THAT THE EXPENDITURE INCURRED AS PER P&L ACCOUNT IS OF RS.35,432/- AND T HUS, RESTRICTING THE NOTIONAL DISALLOWANCE U/R. 8D(2) TO RS.35,4432/-, W HICH IS EXEMPT, IGNORING THE FACT THAT THE ASSESSEE HAS DEBITED RS. 61,06,687/- IN P&L ITA NO.1053/MUM/2013 2 ACCOUNT AS INTEREST EXPENSES LIABLE TO BE CONSIDERE D FOR DISALLOWANCE U/S. 14A OF THE INCOME TAX ACT, AND FURTHER, WITHOU T APPRECIATING THAT THE ASSESSEE HAD SHOWN SHARE INCOME OF RS.12,25,150 /- FROM FIRM WHICH IS EXEMPT U/S. 10(2A) OF THE I.T. ACT. 2. AT THE TIME OF HEARING LD. DR SHRI VIJAY KUMAR BO RA ADVANCED HIS ARGUMENTS WHICH IS IDENTICAL TO THE GR OUNDS RAISED. ASSESSEE DID NOT APPEAR INSPITE OF SERVICE OF NOTIC E, THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PARTE QUA THE ASSESSEE AND TEND TO DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE O N RECORD. WE FURTHER NOTE THAT THE TAX EFFECT IN THE PRESENT APPEAL IS B ELOW PRESCRIBED MONETARY LIMIT. THEREFORE, IT IS LIABLE TO BE DISMI SSED AS NOT MAINTAINABLE. OUR VIEW FINDS SUPPORT FROM THE DECIS ION DT. 12/9/2014 IN THE CASE OF SHRI KULDEEP GANESH HAKE (ITA NO.428 4/M/2013) THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDE R:- 3. WE HAVE PERUSED AND CONSIDERED THE MATERIAL AVA ILABLE ON RECORD. SINCE THE TAX EFFECT IN THE PRESENT APPE AL IS BELOW PRESCRIBED LIMIT, THEREFORE, WE ARE OF THE VIEW THA T THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. THE CENT RAL BOARD OF DIRECT TAXES (CBDT) VIDE INSTRUCTION NO. 5 DATED 10/7/2014 HAS PRESCRIBED THE MONETARY LIMIT FOR FIL ING THE APPEAL BY THE DEPARTMENT WHERE TAX EFFECT IS LESS T HAN RS.4.00 LACS. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF MADHUKAR INAMDAR (185 TAXMANN. 101) HAS HELD THAT CBDT CIRCULAR ARE APPLICABLE WHERE THE APPEALS ARE PENDI NG AND NOT ONLY TO THE APPEAL WHICH ARE TO BE FILED AFTER THE CIRCULAR WAS ISSUED. IN VIEW OF THE AFOREMENTIONED INSTRUCTI ONS OF THE CBDT AND SINCE THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS BELOW THE PRESCRIBED LIMIT, THEREFORE, T HE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. OUR VIEW IS FUR THER FORTIFIED BY THE DECISION OF H BENCH IN ITO VS. SURENDERMAL R. LODHA (ITA NO.1628/MUM/11 ASSESSMENT YEAR 2004-0 5 ITA NO.1053/MUM/2013 3 ORDER DATED 25/8/2014) , CONSEQUENTLY, THIS APPEAL OF THE REVENUE IS DISMISSED. IN VIEW OF THE ABOVE AND UNCONTROVERTED FACT THAT T HE TAX EFFECT IS BELOW MONETARY LIMIT WE DISMISS THIS APPEAL AS NOT MAINTA INABLE. 3. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 28 TH DAY OF OCTOBER, 2014 . ,- $ )*+ .,/ 28.10.2014 * $ 6 SD/- SD/- ( N.K. BILLAIYA ) (JOGINDER SINGH) ( ,7 ( ,7 ( ,7 ( ,7 / ACCOUNTANT MEMBER ,7 ,7 ,7 ,7 / JUDICIAL MEMBER MUMBAI; ., DATED : 28 TH OCT. 2014. ../ JV, SR.PS . ,- $ '&8 98+& ,- $ '&8 98+& ,- $ '&8 98+& ,- $ '&8 98+&/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. : ( ) / THE CIT, MUMBAI. 4. : / CIT(A)-13, MUMBAI 5. 8=6 '& , , / DR, ITAT, MUMBAI 6. 6> ? / GUARD FILE. ,- ,- ,- ,- / BY ORDER, #8& '& //TRUE COPY// @ @@ @/ // /A B A B A B A B (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI