ITO 19(3)(3), MUMBAI V. SHYAM CO-OP HSG. SOCIETY LTD, MUMBAI

ITA 2632/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1500 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 27-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: B R DALAL
• Keywords: Audit objection; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO. 2632/MUM/2018 ASSESSMENT YEAR : 2014-15 INCOME TAX OFFICER - 19(3)(3), MUMBAI VS. M/S. SHYAM CO - OPERATIVE HOUSING SOCIETY LTD., 51, BHULABHAI DESAI ROAD, BREACH CANDY, MUMBAI [PAN : AAAAS 3153 K] ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI R A JESH KUMAR YADAV , D R RESPONDENT BY : SHRI B.R. DALAL, A R DATE OF HEARING : 2 6 - 11 - 201 8 DATE OF PRONOUNCEMENT : 27 - 11 - 201 8 O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5 9, MUMBAI, IN APPEAL NO. CIT(A)-59/IT-26 [1154(A-30)]/2017-18, DATED 09-02-2018. THE ASSESSMENT WAS FRAMED BY THE ITO-19 (3)(3), MUMBAI U/S. 143(3) OF THE INCOME TAX ACT, 1961 [HER EIN AFTER REFERRED TO AS ACT] VIDE HIS ORDER DATED 29-11-20 16. ITA NO.2632/MUM/2018 2 2. AT THE OUTSET, IT IS NOTICED THAT THE CIT(A) HAS DELETED THE ADDITION AND QUANTUM INVOLVED IS ON ACCOUNT OF TRAN SFER CHARGES ON ACCOUNT OF SALE/PURCHASE OF FLATS AMOUNTING TO 37,00,000/- AND NON-OCCUPANCY CHARGES RECEIVED FROM MEMBERS AMO UNTING TO 31,600/-. THAT MEANS, THE TOTAL ADDITION I.E., QUA NTUM INVOLVED IN THIS APPEAL OF REVENUE IS 37,31,600/-. IT MEANS THAT THE TAX EFFECT IN THIS CASE WILL BE MUCH LOWER THAN 20,00,000/-. 3. WHEN THIS WAS CONFRONTED TO THE LEARNED DEPARTME NTAL REPRESENTATIVE HE ADMITTED THAT THE TAX EFFECT IN T HIS APPEAL IS LESS THAN 20 LACS AND COVERED BY THE CBDT CIRCULAR NO. 03 OF 2018 DATED 11-07-2018. 4. WE HAVE GONE THROUGH THE CIRCULAR AND NOTICED TH AT THIS CIRCULAR WILL APPLY TO PENDING APPEALS ALSO & WE AR E REFERRING TO PARA 13 OF THE CIRCULAR FOR THIS PROPOSITION, WHICH READS AS UNDER: 13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/ CROSS OBJECTIONS/ REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/ APPEALS/CROSS OBJECTIONS/ REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED . ITA NO.2632/MUM/2018 3 5. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT TH E REVENUES APPEALS IS FULLY COVERED BY CBDT CIRCULAR NO. 3 OF 2018 AND THERE IS NO EXCEPTION BROUGHT OUT BY THE REVENUE THAT THE SE APPEALS FALLS UNDER ANY OF THE EXCEPTION AS PROVIDED IN PAR A 10 WHICH READS AS UNDER: - 10. 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 IS UNDER CHALLENGE, OR (B) WHERE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION M THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/ BANK ACCOUNTS. 6. WHEN THIS WAS CONFRONTED TO THE LEARNED SR. DEPA RTMENTAL REPRESENTATIVE SHRI RAJESH KUMAR YADAV, HE COULD NO T POINT OUT THAT THIS APPEAL FALLS UNDER ANY OF THE EXCEPTION A S PROVIDED IN CIRCULAR NO. 3 OF 2018. ADMITTEDLY, THE TAX EFFECT IN THIS APPEAL OF REVENUE IS MUCH BELOW THE PRESCRIBED LIMIT OF FILIN G APPEAL BEFORE THE TRIBUNAL I.E. 20 LACS AS PER CBDT CIRCULAR NO. 3 OF 2018. IN ITA NO.2632/MUM/2018 4 VIEW OF THE ABOVE, THIS APPEAL OF REVENUE IS DISMIS SED AS WITHDRAWN IN VIEW OF CIRCULAR NO 3 OF 2018. 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH DAY OF NOVEMBER, 2018 SD/- SD/- (MANOJ KUMAR AGGARWAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 27 TH NOVEMBER, 2018 TNMM ITA NO.2632/MUM/2018 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A),MUMBAI 4. THE CIT 5. DR, BENCH, ITAT, MUMBAI BY ORDER, #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI