ITO 25(1)(1), MUMBAI V. KINJAL DEVELOPERS, MUMBAI

ITA 1695/MUM/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6679 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS USHA NAIR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI N.V.VASUDEVAN(J.M) & SHRI R.K.PANDA (A .M) ITA NO.1695/MUM/2010(A.Y.2006-07) THE ITO 25(1)(1) ROOM NO.201, 2 ND FLOOR, C-11, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 51 (APPELLANT0 VS. M/S. KINJAL DEVELOPERS, B-34/13, SUMANGAL, C.S.ROAD, ANAND NAGAR, DAHISAR(E), MUMBAI 68 PAN: AAFFK 1237Q (RESPONDENT) APPELLANT BY : MRS. USHA NAIR RESPONDENT BY : SHRI SATISH MODY ORDER PER N.V.VASUDEVAN, J.M, THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 11/12/2009 OF CIT(A) 35 MUMBAI RELATING TO ASSESSMENT YEAR 200 6-07. 2. AT THE OUTSET IT WAS POINTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS. 3.00 LACS. IT WAS FURTHER SUBMITTED BY HIM THAT THOUGH THIS APPEAL WAS FILED BY THE REVENUE ON 4/3/2010 AND AT THAT POINT OF TIME THE MONETARY LIM IT FOR FILING OF APPEALS BY THE REVENUE BEFORE THE TRIBUNAL WAS ONLY RS. 2.00 L ACS, YET AS PER INSTRUCTIONS NO.3/2011 DATED 9/2/2011 APPEAL BEFORE THE APPELLATE TRIBUNAL CAN BE FILED ONLY WHERE TAX EFFECT EXCEEDS MONETARY LIMIT OF RS. 3 LACS AND THAT IT HAS BEEN HELD BY THE ITAT MUMBAI I N THE CASE OF ITO VS. M/S. LAXMI JEWEL PVT. LTD., ITA NO.2165/M/10 ( ORDE R DATED 12/4/2011) THAT THE LATER CIRCULAR WILL BE APPLICABLE EVEN FOR APPEALS PREFERRED BY THE REVENUE BEFORE THE COMING INTO FORCE OF THE SAID C IRCULAR. ITA NO.1695/MUM/2010(A.Y.2006-07) 2 3. WE HAVE CONSIDERED THE SUBMISSIONS AND WE FIND T HAT IN THE CASE OF LAXMI JEWEL PVT. LTD. (SUPRA) THIS TRIBUNAL HAS HE LD AS FOLLOWS: 4. AT THE OUTSET THE LEARNED COUNSEL SUBMITTED THAT THE TAX AMOUNT INVOLVED IN THIS APPEAL IS ONLY ` 2,07,512/- AND AS PER INSTRUCTION NO. 3/2011 THE REVENUE SHOULD NOT CONTEST APPEAL UPTO ` 3,00,000/- AS PER THE NEW MONITORY LIMIT. IT WAS FURTHER SUBMITTE D THAT THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MADHUKAR K . INAMDAR (HUF) 318 ITR 149 CONSIDERED THE MAINTAINABILITY OF THE A PPEALS ON SMALL TAX BASIS AND HELD THAT CBDT CIRCULAR ISSUED LATER WOUL D BE APPLICABLE TO ALL THE APPEALS PENDING IN APPELLATE FORUMS AND, TH EREFORE, RELYING ON THE CBDT INSTRUCTION NO. 5 OF 2008 THE APPEALS WERE DISMISSED WHERE THE TAX EFFECT WAS LEAS THAN THE PRESCRIBED LIMIT. THE LEARNED COUNSEL RELIED ON THE PRINCIPLES ESTABLISHED IN THE ABOVE S AID CASE TO SUBMIT THAT THE PRESENT LIMIT OF ` 3,00,000/- MAKE THE REVENUE APPEAL NON- MAINTAINABLE AS THE TAX EFFECT IS LESS THAN ` 3,00,000/-. HE FURTHER SUBMITTED THAT THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128 OF 2008 DATED 0 3.03.2011 RELIED ON THE LATEST CBDT INSTRUCTION TO DISMISS THE APPEA L AS NOT MAINTAINABLE. IT WAS THE SUBMISSION OF THE LEARNED COUNSEL THAT THE APPEAL IS NOT MAINTAINABLE. 5.THE LEARNED D.R., HOWEVER, OBJECTED TO THE SUBMIS SIONS STATING THAT AT THE TIME OF PREFERRING THE APPEAL THE TAX LIMIT WAS ONLY ` 2,00,000/- AND THAT INSTRUCTION WAS FOLLOWED. 6. WE HAVE CONSIDERED THE ISSUE. THERE IS NO DOUBT THAT THE TAX EFFECT IN THIS CASE IF ONLY ` 2,07,512/-. AS PER INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011 APPEAL BEFORE APPELLATE TRIBUNAL C AN BE FILED WHERE THE TAX EFFECT EXCEEDS THE MONITORY LIMIT OF ` 3,00,000/-. HOWEVER, CONSIDERING THE SIMILAR SITUATION WHERE TAX LIMITS WERE MODIFIED BY THE CBDT INSTRUCTION NO. 5 OF 2008 THE HON'BLE JURISDIC TIONAL HIGH COURT IN THE CASE OF CIT VS. MADHUKAR K. INAMDAR (HUF) (S UPRA) HELD THAT THE CIRCULAR WILL BE APPLICABLE TO THE CASES PENDIN G BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL. IN VIEW OF THE ORDER OF THE JURISDICTIONAL HIGH COURT WE HOLD THAT INSTRUCTION NO. 3 DATED 09.02.2011 IS APPLICABLE FOR THE APPEAL PREFERRED B Y THE REVENUE. THEREFORE, THE APPEAL IS DISMISSED ON THE ISSUE OF TAX EFFECT INVOLVED. ITA NO.1695/MUM/2010(A.Y.2006-07) 3 4. RESPECTFULLY FOLLOWING THE DECISION REFERRED TO ABOVE, WE HOLD THAT THE APPEAL IS LIABLE TO BE DISMISSED BECAUSE OF THE MON ETARY LIMIT OF TAX EFFECT BEING LESS THAN RS. 3.0 LACS. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON TH E 22 ND DAY OF JULY, 2011. SD/- SD/- (R.K.PANDA ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 22ND JULY.2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RA BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. ITA NO.1695/MUM/2010(A.Y.2006-07) 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 18/7/11 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 19/7/11 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER