D.C.I.T. 3(1), MUMBAI V. DOME BELL ELECTRONICS INDIA LTD., MUMBAI

ITA 2480/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2431 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 08-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2012
• Court: TRIBUNAL
• Department Lawyers: B B RAJENDRA PRASAD
• Keywords: Tax effect
• Section: 143(3)

Judgement Text

, , D, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.2480/MUM/2012 ASSESSMENT YEAR: 2007-08 DCIT, CIRCLE 3(1), R. NO.607, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 / VS. M/S. DOME BELL ELECTRONICS INDIA LTD., 171-C, MITTAL COURT, 17 TH FLOOR, NARIMAN POINT, MUMBAI-21 ( REVENUE ) ( RESPONDENT ) P.A. NO. AAACD6266G REVENUE BY SHRI B.B. RAJENDRA PRASAD ( D R) RESPONDENT BY SHRI VIJAY MEHTA (A R) ! ' # / DATE OF HEARING : 30/06/2016 ' # / DATE OF ORDER: 22/07/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST O RDER OF LD. ORDER OF LD. COMMISSIONER OF INCOME TAX (APP EALS)-6 MUMBAI, {(IN SHORT CIT(A)}, DATED 31.08.2013 PAS SED AGAINST DOME BELL ELECTRONICS 2 ASSESSMENT ORDER U/S 143(3) 31.12.2009 FOR THE ASSE SSMENT YEAR 2007-08. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI VIJAY MEHTA, AUTHORISED REPRESENTATIVE (AR) ON BEHA LF OF THE ASSESSEE AND BY SHRI B.B. RAJENDRA PRASAD, DEPARTME NTAL REPRESENTATIVE (DR) ON BEHALF OF THE REVENUE. 3. IN THIS CASE LD. COUNSEL OF THE ASSESSEE AT THE VE RY OUTSET BROUGHT TO OUR NOTICE THAT TAX EFFECT IN THIS CASE IS FOR RS. 9,35,762/- AND THEREFORE, THIS APPEAL WAS NOT MAINT AINABLE IN VIEW OF BOARDS CIRCULAR DATED 10 TH DECEMBER 2015 NO. 21/ 2015. BUT, IT WAS FAIRLY SUBMITTED BY HIM THAT ON T HE AMOUNT OF TAX, AMOUNTS OF SURCHARGE AND EDUCATION CESS WER E ALSO PAYABLE AMOUNTING TO RS.9,35,76/- & RS.30,880/- RESPECTIVELY. IT WAS FURTHER SUBMITTED BY HIM THAT FOR THE PURPOSE OF COMPUTING TAX EFFECT FOR THE PURPOSE O F AFORESAID CIRCULAR, ONLY TAX AMOUNT IS TO BE SEEN AS DEFINE D U/S 2(43) OF THE ACT AND SURCHARGE/EDUCATION EXCESS ARE NOT TO B E CONSIDERED FOR THIS PURPOSE. HE RELIED UPON DECISIO N OF HONBLE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT V S. SHRI R. VISWANATHAN DATED 23.09.2011 (ITA NO.30/MDS/2011) M .P. NO.155/MDS/2011. 3.1. PER CONTRA LD. DR WAS NOT IN A POSITION TO POINT O UT ANY CONTRARY JUDGMENTS. 3.2. WE HAVE GONE THROUGH THE FACTS OF THIS CASE AND AL SO GONE THROUGH THE AFORESAID CIRCULAR AS WELL AS SUB-SECTI ON (43) OF SECTION 2 OF THE ACT WHICH DEFINES WORD TAX. IT I S NOTED THAT DOME BELL ELECTRONICS 3 THE IDENTICAL ISSUE CAME UP BEFORE THE HONBLE CHEN NAI BENCH WHEREIN HONBLE BENCH HELD AS UNDER: WE FIND THAT IN CLAUSE (4) OF INSTRUCTION NO.5 OF 2008 DATED 15TH MAY, 2008 OF CBDT, TAX EFFECT IS DEFINED AS UNDER:- 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFER ENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND TH E TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCO ME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREAFTER REFERRED TO AS DISPUTED ISSUES). HOWEV ER, THE TAX WILL NOT INCLUDE ANY INTEREST THEREON. SIMILARL Y, IN LOSS CASES NOTIONAL TAX EFFECT SHOULD BE TAKEN INTO ACCO UNT. IN THE CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEA N 3 M.P. NO. 155/MDS/11 QUANTUM OF PENALTY DELETED OR REDUCE D IN THE ORDER TO BE APPEALED AGAINST. NOTHING HAS BEEN MENTIONED IN THE ABOVE DEFINITION TO SHOW THAT TAX WILL INCLUDE SURCHARGE FOR THE PURPOS E OF APPLYING THE SAID CIRCULAR. NOW IF WE LOOK AT THE D EFINITION OF TAX AS PER SUB-SECTION (43) OF SECTION 2 OF IN COME-TAX ACT, 1961, IT RUNS AS UNDER:- (43) TAX IN RELATION TO THE ASSESSMENT YEAR COMM ENCING ON THE 1 ST DAY OF APRIL, 1965, AND ANY SUBSEQUENT ASSESSMENT YEAR MEANS INCOME-TAX CHARGEABLE UNDER T HE PROVISIONS OF THIS ACT, AND IN RELATION TO ANY OTHE R ASSESSMENT YEAR INCOME-TAX AND SUPER-TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT PRIOR TO THE AFORE SAID DATE [AND IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2006, AND ANY SUBSEQUENT ASSESSME NT YEAR INCLUDES THE FRINGE BENEFIT TAX PAYABLE UNDER SECTION 115WA] IT IS CLEAR THAT TAX, AS PER THE ABOVE DEFINITION, WOULD INCLUDE SUPERTAX AND ALSO FRINGE BENEFIT TAX BUT NO T SURCHARGE. ADMITTEDLY, HERE, THE TAX WAS ONLY RS. 2,90,250/- WHICH IS BELOW THE LIMIT OF RS.3 LAKHS PRESCRIBED IN THE CIRCULAR FOR FILING APPEALS BEFOR E THIS TRIBUNAL. RESULTANTLY, WE DO NOT FIND ANY MISTAKE I N THE ORDER OF THIS TRIBUNAL MUCH LESS ANY MISTAKE APPARE NT ON RECORD. DOME BELL ELECTRONICS 4 3.3. WE HAVE ALSO GONE THROUGH SUB-SECTION (43) OF SECT ION 2 WHICH DEFINES TAX. THE PERUSAL OF THE DEFINITION SHOWS THAT WHATEVER WAS INTENDED TO BE INCLUDED IN TAX HAS BEE N MENTIONED THEREIN. WHEN THE LEGISLATURE HAS MENTION ED THE WORDS SUPER-TAX AND FRINGE BENEFIT TAX, THEN, I T COULD HAVE ALSO MENTIONED THE WORDS SURCHARGE AND EDUCATION CESS AS WELL, IF THERE WAS ANY INTENTION TO INCLUDE THEM IN THE WORD TAX. THUS, WE RESPECTFULLY AGREE WITH THE DECISIO N TAKEN BY THE CHENNAI BENCH. IN OUR VIEW, SURCHARGE AND EDUCA TION CESS SHALL NOT BE INCLUDE IN WORD TAX FOR THE PURPOSE OF EXAMINING OF TAX EFFECT AS ENVISAGED IN CIRCULAR OF BOARD DT 10 TH DECEMBER 2015 NO.21/2015. THUS, THE TAX EFFECT BEING LESS TH AN 10 LAKHS, IMPUGNED APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND THEREFORE SAME IS HEREBY DISMISSED . OUR ORDER HAS NO EFFECT ON THE MERITS OF THIS CASE. 4. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JULY, 2016. SD/- (JOGINDER SINGH) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER ! MUMBAI; % DATED: 22/07 /2016 CTX? P.S/. . . #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. '() / THE APPELLANT 2. *+() / THE RESPONDENT. 3. , , - ( ' ) / THE CIT, MUMBAI. DOME BELL ELECTRONICS 5 4. , , - / CIT(A)- , MUMBAI 5. 01 *2 , , '# 23 , ! / DR, ITAT, MUMBAI 6. 45 6! / GUARD FILE. / BY ORDER, +0' * //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI