ITO 8(2)(3), MUMBAI V. MICROSWITCH SOLUTION P.LTD, MUMBAI

ITA 1704/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3746 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 01-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D PRABHAKAR REDDY
• Keywords: Tax effect
• Section: 143(3); 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH , JUDICIAL MEMBER ITA NO. 1704/MUM/2013 : (A.Y : 20 09 - 10 ) ITO - 8(2)(3), MUMBAI VS. M/S. MICROSWITCH SOLUTION PVT. LTD., 301 - 302, FLORAL DECK PLAZA, MIDC, CENTRAL ROAD, MUMBAI 400 093. PAN : AAECM7525R (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI D. PRABHAKAR REDDY (DR) DATE OF HEARING : 15 / 03 /201 6 DATE OF PRONOUNCEMENT : 15 /03/2016 O R D E R PER R.C. SHARMA, AM : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - MUMBAI, DATED 11 - 12 - 201 2 , FOR THE ASSESSMENT YEAR 200 9 - 1 0, PASSED U/S. 143(3) OF THE INCOME TAX ACT, 1961 . 2. THE CBDT VIDE CIRCULAR NO.21/2015 DATED 10/12/2015 HAS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE THE TRIBUNAL RETROSPECTIVELY. THE TAX EFFECT IN DISPUTE IN THE CAPTIONED APPEAL IS STATED TO BE BELOW THE MONETARY LIMIT OF RS.10.00 LACS SPECIFIED IN THE CBDT CIRCULAR DATED 1 0/12/2015 (SUPRA). 2 M/S. MICROSWITCH SOLUTION PVT. LTD. ITA NO. 1704 /MUM/2013 3. IN THIS BACKGROUND, LD. DEPARTMENTAL REPRESENTATIVE APPEARING FOR THE REVENUE WAS REQUIRED TO STATE HIS POSITION. HE HAS NOT BROUGHT OUT ANY MATERIAL TO SUGGEST THAT THE CAPTIONED APPEAL IS PROTECTED BY ANY OF THE CIRCUMSTANCES PRESCRIBED IN PARA - 8 OF THE CIRCULAR DATED 10/12/2015 (SUPRA) AND AS A CONSEQUENCE SUCH APPEAL IS LIABLE TO BE TREATED AS WITHDRAWN/NOT PRESSED. THE RELEVANT PORTION OF THE CIRCULAR DATED 10/12/2015 (SUPRA) IS REPRODUCED BELOW: - 3. HENCEFORTH APPEALS/SL PS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: - SL. NO. APPEALS IN INCOME - TAX MATTERS MONETARY LIMITS (IN RS.) 1. BEFORE APPELLATE TRIBUNAL 10,00,000 2. BEFORE HIGH COURT 20,00,000 3. BEFORE SUPREME COURT 25,00,000 .. ........................................................................................................................... 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'DISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUDE ANY I NTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. .............................................................. .............................................................. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR 3 M/S. MICROSWITCH SOLUTION PVT. LTD. ITA NO. 1704 /MUM/2013 (C) WHERE REVENUE AUD IT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/ BANK ACCOUNTS. 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE SHALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OTHER T HAN INCOME TAX. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVERNED BY RELEVANT PROVISIONS OF STATUTE & RULES. FURTHER, FILING OF APPEAL IN CASES OF INCOME TAX, WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUCH AS THE C ASE OF REGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT, 1961, SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AND DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED . APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. (UNDERLINED FOR EMPHASIS BY US) 4. 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 IN CONTRAVENTION OF THE CBDT CIRCULAR DATED 10/12/2015(SUPRA). 5. IN CONCLUSION, BY APPLYING THE CBDT CIRCULAR DATED 10/12/2015(SUPRA), THE CAPTIONED APPEAL OF THE REVENUE IS DISMISSED AS WITHDRAWN/NOT PRESSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 5 T H MARCH, 2016. SD/ - SD/ - ( PAWAN SINGH ) JUDICIAL MEMBER (R.C. SHARMA) ACCOUNTANT MEMBER MUMBAI, DATE : 1 5 T H MARCH, 2016 *SSL* 4 M/S. MICROSWITCH SOLUTION PVT. LTD. ITA NO. 1704 /MUM/2013 COPY TO : 1) THE APPLICANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, B BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI