ITO 16(3)(2), MUMBAI V. DR. NIKHIL KELKAR, MUMBAI

ITA 1901/MUM/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1767 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 01-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M A Y ITO ROOM NO TH FLOOR A
• Keywords: Audit objection; Tax effect
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER SL. NO . ITA NO.& A.Y APPELLANT RESPONDENT APPELLANT BY RESPONDENT BY 1 1901 /M/15, A.Y 2010- 11 ITO 16(3)(2) , ROOM NO.448, 4 TH FLOOR, AAYAKAR BHAWAN, MK ROAD, MUMBAI -400 020 DR. NIKHIL KELKAR, 404-A, GLOBAL CHAMBERS, NEAR HONDA SHOW ROOM, LINK ROAD, AADARSH NAGAR, ANDHERI (W), MUMBAI 400 053 PAN:AGYPK7281K SHRI SANJEEV KASHYAP NONE 2 1297/M/15, A.Y 2010- 11 DCIT, CC-8(1), ROOM NO.656, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 20. SMT. INDRA GAGGAR, 41-42, 4 TH FLOOR, GAURAV EXTENSION, FILM CITY ROAD, GOKULDHAM, GOREGAON (EAST), MUMBAI 400 063 PAN:AFXPG3889B SHRI JEETENDRA KUMAR NONE 3 2449/M/15 A.Y 2009- 10 DCIT-5(1)(2) ROOM NO.568, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400020. M/S. CONCORDE DESIGN PVT. LTD., 102-203, PENINULA CENTRE, DR. S.S. RAO ROAD, PAREL, MUMBAI-400 012 PAN:AABCC8160D SHRI JEETENDRA KUMAR NONE 4 2016/M/15, A.Y 2011- 12 D CIT-10(2)(1), ROOM NO.216-A, 4 TH FLOOR, AAYAKAR BHAWAN, MK ROAD, MUMBAI -400 020 MR. NARENDRA ISHWARLAL GANDHI, 3C, RIDGE APARTMENT, B.G. KHER MARG, MALABAR HILL, MUMBAI 400 006 PAN:ADNPG4447F SHRI JEETENDRA KUMAR NONE 5 2083/M/15, A.Y. 2008- 09 ITO-20(2)(4) ROOM NO.220, 2 ND FLOOR, PIRAMAL CHAMBERS, 3 RD FLOOR, PAREL, MUMBAI 400012 M/S. NAGIN FULCHAND JAIN HUF, A/206, SHANKESHWAR TOWER, LOVE LANE, MAZGAON, MUMBAI 400010 PAN:AAEHJ6679N SHRI JEETENDRA KUMAR NONE 6 1895 & ITO-20(3)(2) M/S. SANDEEP N. JAIN SHRI NON E ITA NO.1901/M/15 & OTHERS. DR. NIKHIL KELKAR & OTHERS 2 & 7 1896/M/15, A.Y. 2009- 10 ROOM NO.612, 6 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI 400012 HUF, A/206, SHANKESHWAR TOWER, LOVE LANE, MAZGAON, MUMBAI 400010 PAN:AAEHU6681G JEETENDRA KUMAR 8 1363/M/15, A.Y.2010- 11 ITO-21(3)(5), ROOM NO.117, PIRAMAL CHAMBERS, 1 ST FLOOR PAREL, MUMBAI 400012 SHRI VINOD B. GOENKA, 12 TH FLOOR, TURF VIEW, MOTILAL SANGHI MARG, WORLI, MUMBAI 400018 PAN:AAEPG3076E SHRI SANJEEV KASHYAP NONE 9 2045 /M/1 5 , A.Y 2010- 11 D CIT 20 ( 2 ), ROOM NO.217, 2 ND FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400012 M/S. PRINT HOME , 313/A, BYCULLA SERVICE IND., DEDOJEE KONDEV ROAD, BYCULLA, MUMBAI 400027 PAN:AAEFP6616P SHRI SANJEEV KASHYAP NONE DATE OF HEARING : 30.12.2015 DATE OF PRONOUNCEMENT : 30.12.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THIS BUNCH OF NINE APPEALS, ALL FILED BY THE REVENU E, IS DECIDED BY THIS COMMON ORDER AS THE TAX EFFECT IN EACH OF THE ABOVE APPEALS IS LESS THAN RS.10 LACS, THUS BEING COVERED BY THE LATEST CBDT CIRCULA R NO.21/2015, F. NO.279/MISC.142/2007-ITJ (PT) DATED 10 TH DECEMBER, 2015 ISSUED BY CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINIS TRY OF FINANCE, GOVERNMENT OF INDIA. 2. THE LD. D.R. HAS SUBMITTED THAT TAX EFFECT INVOL VED IN EACH OF THESE APPEALS IS LESS THAN RS.10 LACS AND THE CBDT CIRCUL AR NO.21/2015 IS APPLICABLE TO THESE APPEALS AND THE APPEALS ARE NOT MAINTAINABLE/NOT PRESSED IN TERMS OF THE SAID CBDT CIRCULAR NO.21/2015 DATED 10 /12/2015. ITA NO.1901/M/15 & OTHERS. DR. NIKHIL KELKAR & OTHERS 3 3. THE CBDT VIDE CIRCULAR DATED 10/12/2015 (SUPRA) HAS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPART MENT BEFORE THE TRIBUNAL WHEREBY IT HAS BEEN PROVIDED THAT NO APPEAL SHALL B E FILED BY THE REVENUE IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3 OF THE SAID CIRC ULAR AND FURTHER VIDE PARA 10 OF THE SAID CIRCULAR IT HAS BEEN CLARIFIED THAT SAI D CIRCULAR IS APPLICABLE RETROSPECTIVELY TO THE PENDING APPEALS ALSO AND THA T PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS MAY BE WITHDRAWN/NOT PRESSED. THE RELEVANT PORTION OF THE CIRCULAR DATED 10/12/2015 (SUPRA) IS REPRODUCED BEL OW:- 3.HENCEFORTH APPEALS/SLPS SHALL NOT BE FILED IN CAS ES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER:- SL. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMI TS (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 DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE B EEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME I N RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREI NAFTER REFERRED TO AS 'DISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUD E ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISP UTE. 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. I N 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 ISS UES 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 C IRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE ITA NO.1901/M/15 & OTHERS. DR. NIKHIL KELKAR & OTHERS 4 DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN A SSETS/ BANK ACCOUNTS. 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE S HALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OTHER THAN INCOME TA X. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVER NED BY RELEVANT PROVISIONS OF STATUTE & RULES. FURTHER, FILING OF APPEAL IN CA SES OF INCOME TAX, WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUC H AS THE CASE 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 AN D DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR C ASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIB UNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWAL 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. THE TAX EFFECT IN DISPUTE IN THE CAPTIONED APPEA LS IS STATED TO BE BELOW THE MONETARY LIMIT OF RS.10.00 LACS AS SPECIFIED IN THE CBDT CIRCULAR DATED 10/12/2015 (SUPRA). THE LD. D.R. HAS NOT BROUGHT O UT ANY MATERIAL TO SUGGEST THAT ANY OF THE CAPTIONED APPEAL IS PROTECTED BY AN Y OF THE CIRCUMSTANCES PRESCRIBED IN PARA-8 OF THE CIRCULAR DATED 10/12/20 15 (SUPRA). HE, THEREFORE, HAS STATED THAT IN VIEW OF THE ABOVE CIRCULAR OF TH E CBDT, THE CAPTIONED APPEALS BE TREATED AS WITHDRAWN/NOT PRESSED. HENCE , WITHOUT GOING INTO THE MERIT OF THE ISSUES RAISED IN THE PRESENT APPEALS, THESE APPEALS ARE TREATED AS DISMISSED AS WITHDRAWN/NOT PRESSED AND THESE BEING FILED IN CONTRAVENTION OF THE CBDT CIRCULAR DATED 10/12/2015(SUPRA) READ WITH SECTION 268A OF THE INCOME TAX ACT. HOWEVER, THE REVENUE WILL BE AT LI BERTY TO FILE AN APPLICATION FOR RECALL OF ANY OF THESE APPEALS IN ACCORDANCE WI TH LAW, IF AT ANY STAGE IT IS FOUND THAT TAX EFFECT IS MORE THAN RS.10 LACS OR TH E REVENUE WANTS TO AGITATE THE MATTER IN ACCORDANCE WITH THE PROVISIONS/CLAUSE S AS CONTAINED IN THE AFORESAID CIRCULAR. 5. IN THE RESULT, THE CAPTIONED NINE APPEALS FILED BY THE REVENUE ARE DISMISSED. ITA NO.1901/M/15 & OTHERS. DR. NIKHIL KELKAR & OTHERS 5 ORDER PRONOUNCED IN THE OPEN COURT ON 30.12.2015. SD/- SD/- (RAMIT KOCHAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 30.12.2015. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.