ITO WD 17(2)(2), MUMBAI V. JITENDRA M CHITRODA PROP. M/S. VISION CHOICE, MUMBAI

ITA 228/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8392 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 05-11-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 11-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S V KRISHNAMOORTY
• Assessee Lawyers: REPAL TRALSHAWALA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (J.M.) AND SHRI N.K. BILLAIYA (A.M.) ITA NO. 228/MUM /2010 ASSESSMENT YEAR : 2003-04 INCOME TAX OFFICER WARD 17(2)(2), ROOM NO. 212, PIRAMAL CHAMBER, LALBAUG, MUMBAI 400 012. VS. SHRI JITENDRA M., CHITRODA PROP. M/S VISION CHOICE, 24/12 KRISHNA KUNJ, BEHIND ARORA CINEMA, KING CIRCLE, MUMBAI- 400 019. PAN :AAAPC4502F (APPELLANT) (RESPONDENT) REVENUE BY : SHRI S.V. KRISHNAMOORTY ASSESSEE BY : SHRI REPAL TRALSHAWALA DATE OF HEARING 05-11-2012 DATE OF PRONOUNCEMENT 09-11-2012 O R D E R PER DINESH KUMAR AGARWAL, J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER DATED 29-10-2009 PASSED BY THE LD. CIT (A)- 29, MUM BAI FOR THE ASSESSMENT YEAR 2003-04 TAKING FOLLOWING GROUND OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 7, 20,013/- MADE ON ACCOUNT OF INTERNET CHARGES WITHOUT APPRECIATING TH E FACT THAT ASSESSEE HAS NEITHER RECONCILED THE FIGURE OF INTERNET CHARG ES NOR OFFERED FOR TAXATION. ITA NO.228/MUM/2010 2 2. AT THE TIME OF HEARING IT WAS OBSERVED THAT THE TAX EFFECT ON THE DISPUTED AMOUNT OF RS. 7,20,013/- IN THE APPEAL FI LED BY THE REVENUE IS RS. 2,26,804/- WHICH IS LESS THAN THE MONETARY LIMI T OF RS. 3 LACS FIXED BY THE CBDT VIDE INSTRUCTION NO. 3 OF 2011 DATED 9- 2-2011 REPORTED IN (2011) 332 ITR 1 (STATUTES). THE LD. D.R. DID NOT D ISPUTE ON THE SAID FACTUAL MATRIX OF THE CASE. 3. THE LD. COUNSEL FOR THE ASSESSEE WHILE RELYING O N THE CBDT INSTRUCTION (SUPRA) ALSO RELIED ON THE FOLLOWING DE CISIONS:- 1. CIT VS. MADHUKAR K. INAMDAR (HUF) 318 ITR 149(BO M) 2. CIT VS. PITHWA ENGG. WORKS [2005] 276 ITR 519 ( BOM) 3. CIT VS. CAMCO COLOUR CO. [2002] 254 ITR 565 (BO M) 4. CIT VS. VIRENDRA & CO. (BOM), JUDGMENT DATED 20 -7-2012. 5. CIT VS. VIJAYA KAVEKAR (BOM), JUDGMENT DATED 29 -7-2011. 6. CIT VS. VARSHA DILIP KOHLE (BOM), ORDER DATED 5 -3-2012 7. CIT VS. SATISCHANDRA D. KHATOD (HUF) (GUJ), JUDG MENT DATED 24-8-2012. 8. ITO VS. SHREE SWASTIK DEVELOPERS (MUM) IN ITA NO . 3568/M/2010, A.Y. 2004-05, ORDER DATED 7-9-2011. 9. ITO VS. KINJAL DEVELOPERS (MUM) IN ITA NO. 1695/ M/2010, A.Y. 2006-07, ORDER DATED 22-7-2011. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUT E THAT THE TAX EFFECT ON THE DISPUTED AMOUNT OF RS. 7,20,013/- IS LESS THAN THE MONETARY LIMIT OF RS. 3 LACS FIXED BY THE CBDT (SUPRA). ITA NO.228/MUM/2010 3 5. IN CIT VS. MADHUKAR K. INAMDAR (HUF) (2009) 318 ITR 148 (BOM) IT HAS BEEN HELD THAT THE REVISED MONETARY LIMIT IN THE CIRCULAR DATED MAY 15, 2008 WOULD BE APPLICABLE FOR ALL PENDING AP PEALS. 6. RECENTLY THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. SMT. VARSHA DILIP KOLHE IN TAX APPEAL NO. 7 OF 2010 DTD. 5-3-2012 AFTER CONSIDERING THE INSTRUCTION NO. 3/2011 AND TH E DECISION OF THE HONBLE SUPREME COURT IN SURYA HERBAL LTD. (SUPRA) HAS HELD AS UNDER:- 3..THEREFORE, THE CONTENTION OF MR. SHARMA THAT THE CIRCULAR DOES NOT APPLY TO THE PENDING CASES IS REJECTED. . . 5. WE HAVE CAREFULLY CONSIDERED THE FACTS OF THE PR ESENT CASE AND IN OUR VIEW THIS APPEAL DOES NOT INVOLVE ANY CASCADING EFFECT AND IT IS NOT POINTED TO US THAT SEVERAL APPEALS ARISE THE POINT WHICH IS INVOLVED IN THIS APPEAL. 7. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, WHER EIN IT HAS BEEN CONSISTENTLY HELD THAT THE CBDT INSTRUCTION NO. 03/ 2011 DTD. 9-2-2011 WOULD APPLY EVEN TO PENDING APPEALS AND THE LD. D.R ., AT THIS STAGE, WAS UNABLE TO POINT OUT ANY CASCADING EFFECT, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE APPEAL AND ACCORD INGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ITA NO.228/MUM/2010 4 8. IN THE RESULT, THE REVENUES APPEAL STANDS DISMI SSED. ORDER PRONOUNCED ON 9-11-2012 SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER SD/- (DINESH KUMAR AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 9-11-2012. RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 29 MUMBAI 4. COMMISSIONER OF INCOME TAX 17, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH I, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI