JOINT COMMISSIONER OF INCOME TAX (OSD) CIRCLE 10(2)(1), MUMBAI V. J.P. INFRA(MUMBAI) P.LTD, MUMBAI

ITA 1703/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8631 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 15-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIV GUBGOTRA
• Assessee Lawyers: JIGER MEHTA
• Keywords: Earning of tax free income; Retrospective amendment; Tax effect; Rule 8D; Set aside
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F , MUMBAI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI PAWAN SINGH , JUDICIAL MEMBER IT A NO. 1703 /MUM/201 8 : (A.Y : 201 4 - 15 ) ACIT 10(2)(1), MUMBAI. ( APPELLANT ) VS. M/S. J.P. INFRA ( MUMBAI ) PVT. LTD., 401, 402, VIRAJ TOWER, WESTERN EXPRESS HIGHWAY, NR. WEH METRO STATION, ANDHERI (E), MUMBAI 400 093. PAN : AACCV2529A (RESPONDENT) APPELLANT BY : SHRI RAJIV GUBGOTRA RESPONDENT BY : SHRI JIGER MEHTA DATE OF HEARING : 25 /0 3 /2019 DATE OF PRONOUNCEMENT : 25 /0 3 /2019 O R D E R PER G.S. PANNU , VP : THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAINING TO ASSESSMENT YEAR 2014 - 15 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A) - 17, MUMBAI DATED 29.12.2017, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 16.12.2016. 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN THE LAW, IS THE LD CIT(A) CORRECT IN RESTRICTING THE DISALLOWANCE MADE U/S 14A READ WITH RULE 8D OF 2 ITA NO. 1703/MUM/2018 M/S. J.P. INFRA (MUMBAI) PVT. LTD. THE INCOME - TAX RULES, 1962 AMOUNTING TO RS.49,69,188/ - TO THE EXEMPT INCOME EARNED BY THE ASSESSEE IN SPITE OF THE EXTANT CIRCULAR OF CBDT BEARING NO. 05/2014 DATED 11.02.2014 WHEREIN THE BOARD HAS CLARIFIED THAT PROVISIONS OF SECTION 14A OF THE ACT ARE APPLICABLE IN THE CASES EVEN WHERE THE ASSESSEE IN A PARTICULAR YEAR HAS NOT EARNED ANY EXEMPT INCOME, WHICH PER SE MEANS THE DISALLOWANCE U/S 14A O F THE INCOME - TAX ACT, 1961 CANNOT BE RESTRICTED TO THE EXEMPT INCOME. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE A.O BE RESTORED. 3. THE CBDT VIDE CIRCULAR NO. 3/2018 DATED 11.07.2018 HAS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE THE TRIBUNAL WITH RETROSPECTIVE EFFECT. THE TAX EFFECT IN DISPUTE IN THE CAPTIONED APPEAL IS STATED TO BE BELOW THE MONETARY LIMIT OF RS.20.00 LACS SPECIFIED IN THE CBDT CIRCULAR DATED 11 .07.2018 (SUPRA). 4. IN THIS BACKGROUND, THE LD. DEPARTMENTAL REPRESENTATIVE APPEARING FOR THE REVENUE WAS REQUIRED TO STATE HIS POSITION; HE HAS NOT REFERRED TO ANY MATERIAL WHICH WOULD SHOW THAT THE CAPTIONED APPEAL IS PROTECTED BY ANY OF THE EXCEPTIONS PROVIDED IN PARA 10 OF THE CIRCULAR (SUPRA). 5. WITHOUT GOING INTO THE MERIT OF THE ISSUES RAISED IN THE CAPTIONED APPEAL, THIS APPEAL IS DEEMED TO BE WITHDRAWN/NOT PRESSED AS ITS FILING IS NOT IN CONSONANCE WITH THE CBDT CIRCULAR DATED 11.07.2018 (SUPR A). BEFORE PARTING, WE CLARIFY HERE THAT IF ON A LATER DATE REQUISITE MATERIAL IS BROUGHT TO SHOW THAT THE APPEAL IS PROTECTED BY ANY OF THE EXCEPTIONS PRESCRIBED IN PARA 10 OF THE CIRCULAR (SUPRA), THEN THE REVENUE SHALL BE AT LIBERTY TO APPROACH THE TRI BUNAL FOR RE - INSTITUTION OF APPEAL. THE TRIBUNAL SHALL CONSIDER SUCH APPLICATION IN ACCORDANCE WITH THE EXTANT LAW. 3 ITA NO. 1703/MUM/2018 M/S. J.P. INFRA (MUMBAI) PVT. LTD. 6. IN CONCLUSION, BY APPLYING THE CBDT CIRCULAR DATED 11.07.2018 (SUPRA), THE CAPTIONED APPEAL OF THE REVENUE IS DISMISSED AS WITHDRAWN/NO T PRESSED. ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF HEARING ON 2 5 .0 3 .201 9 . SD/ - SD/ - ( PAWAN SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) VICE PRESIDENT MUMBAI, DATE : 2 5 T H MARCH , 201 9 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, F BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI