ASST CIT 25(2), MUMBAI V. K PATEL & CO., MUMBAI

ITA 195/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92887 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY PUNGLIA
• Assessee Lawyers: PRINYANKA MARU
• Keywords: Depreciation; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NO. 195/MUM/2014 / ASSESSMENT YEAR 2009-10 ASSTT. CIT- 25(2), ROOM NO.108, 1 ST FLOOR, BLDG., NO.C-11, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI 400051 / VS. M/S. K PATEL & CO. A, A-101, ALAKNANDA, ANNASAHEB VARTAK MARG, TPS-III, BORIVALI (W), MUMBAI 400 092. ./ ./ PAN/GIR NO. : AAAFK 2315A ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI SANJAY PUNGLIA RESPONDENT BY : MS. PRINYANKA MARU # $ % / DATE OF HEARING : 15/06/2015 # $ % / DATE OF PRONOUNCEMENT : 15/06/2015 / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-35, MUMBAI DATED 11/10/2013 F OR ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE ID.CIT(AL ERRED IN DELETING THE DISALLOWANCE OF RS.2,78,126/- WAS MADE OUT OF THE VARIOUS EXPENSES SUCH AS VEHICLE & DEPRECIATION EXPENSES, C ONVEYANCE EXPENSES, TELEPHONE EXPENSES, SALES PROMOTION & ADVERTISEMENT EXP., REPAIRS & MAINTENANCE, STAFF WELFARE AND SOCIETY EXPENSES DEB ITED IN P&L ACCOUNT DESPITE OF FACT THAT THE ASSESSEE HAS NOT PRODUCED FULL VOU CHERS AND PART OF THE EXPENSES AND PERSONAL IN NATURE.' . / ITA NO. 195/MUM/2014 / ASSESSMENT YEAR 2009-10 2 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE ID.CIT(A) ERRED IN DELETING THE ADDITION OF RS. 7,43,000/ - W HICH WAS MADE BY DISALLOWING OF REIMBURSEMENT OF AMENITIES NOT TAKEN AS THE ASSE SSEE HAS NOT PRODUCED DETAILS OF PERSONS TO WHOM THE PAYMENT WAS MADE AND ALSO NOT PRODUCED ANY AGREEMENT WITH BUYER TO THIS EFFECT.' 2. AS IT CAN BE SEEN FROM THE GROUNDS OF APPEAL THAT THE DELETION OF AN AGGREGATE SUM OF RS.10,21,126/- IS AGITATED BY THE REVENUE ON WHICH TAX EFFECT WOULD BE LESS THAN RS.4.00 LACS. VIDE CBDT INSTRUCTION NO.5/2014 F.NO.279/MISC.142/2 007- ITJ(PT)] DATED 10/07/2014, THE TAX EFFECT LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL BY THE REVENUE WAS ENHANCED FROM RS.3.00 L ACS TO RS.4.00 LACS. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES. HOWEVER, ACCORDING TO FOLLOWING DECISIONS OF HONBLE JURISD ICTIONAL HIGH COURT, SUCH NOTIFICATIONS ISSUED UNDER SECTION 268A WOULD BE AP PLICABLE EVEN TO THE APPEALS FILED BEFORE ISSUE OF THE NOTIFICATION IF THE LIMIT IS ENHANCED: 1. IN THE CASE OF CIT VS. SMT. VIJAYA KAVEKAR (201 3 30 TAXMANN.COM 412) IT WAS HELD AS UNDER: SECTION 260A, READ WITH SECTION 268A, OF THE INCOME -TAX ACT, 1961 - HIGH COURT - APPEALS TO - TAX EFFECT - WHETHER INSTRUCTI ON NO. 3 OF 2011, DATED 9- 2-2011, SPECIFYING MONETARY LIMIT OF RS. 10 LAKHS F OR MAINTAINABILITY OF APPEAL BEFORE HIGH COURT IS APPLICABLE ON PENDING A PPEALS AS WELL - HELD, YES - WHETHER, THEREFORE, WHERE TAX EFFECT IN REVEN UES APPEALS WAS LESS THAN RS. 10 LAKHS WHICH WAS FILED EVEN PRIOR TO ISS UE OF INSTRUCTION DATED 9-2-2011, SAME WAS TO BE DISMISSED BEING NON-MAINTA INABLE - HELD, YES [IN FAVOUR OF ASSESSEE ] 2. IN THE CASE OF CIT VS. MADHUKAR IMANDAR (2009 1 85 TAXMAN 101] IT WAS HELD AS UNDER: SECTION 268A, READ WITH SECTION 119, OF THE INCOME- TAX ACT, 1961 - APPEAL OR APPLICATION FOR REFERENCE - FILING OF, BY INCOME -TAX AUTHORITY - WHETHER CIRCULAR/INCOME-TAX INSTRUCTION NO. 5 OF 2008, DATE D 15-5-2008 ISSUED BY CBDT DIRECTING INCOME-TAX AUTHORITIES NOT TO FILE A PPEALS IF TAX EFFECT IS LESS THAN RS. 4 LAKHS WOULD BE APPLICABLE TO CASES PENDI NG BEFORE HIGH COURT AS ON 15-5-2008 EITHER FOR ADMISSION OR FOR FINAL D ISPOSAL, EVEN THOUGH . / ITA NO. 195/MUM/2014 / ASSESSMENT YEAR 2009-10 3 SAID APPEALS AND/OR PETITIONS WERE FILED BEFORE HIG H COURT PRIOR TO 15-5- 2008 - HELD, YES 5. IN THIS VIEW OF THE SITUATION, WE DISMISS THE APPEAL FILED BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT AS PER AFOREMENTIONED INSTRUCTION ISSUED BY CBDT. ORDER PRONOUNCED IN THE OPEN COURT ON 15/06/2015 # + , - 15/06/2015 # SD/- SD/- ( . . / B.R.BASKARAN ) . . /I.P.BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; , DATED 15/06/2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. /$ ( ) / THE CIT(A)- 4. /$ / CIT 5. 01 $23 , % 23 , / DR, ITAT, MUMBAI 6. 4 / GUARD FILE. / BY ORDER, 0$ $ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS