ITO (TDS) 2(1), MUMBAI V. ICMA ENTERPRISES, MUMBAI

ITA 3019/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56018 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 03-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 16-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE
• Assessee Lawyers: F V IRANI
• Keywords: Reasonable cause; Tax effect
• Section: 2; 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I, MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 3019 /MUM/2010. ASSESS MENT YEAR : 2006-07. THE INCOME-TAX OFFICER,(TDS), M/S ICMA ENTERPRISES, 2(1), MUMBAI. VS. INDIAN CORK MILLS COMPOUND, SAKI VIHAR ROAD, POWAI, MUMBAI 400 072. PAN : AAAFI0403R APPELLANT. RESPONDENT. APPELLANT BY : SHR I SHANTAM BOSE. RESPONDENT BY : SHRI F.V. IRANI. DATE OF HEA RING : 03-11-2011. DATE OF PRONOUNCEM ENT : 18-11-2011. O R D E R PER P.M. JAGTAP, A.M. : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LEARNED CIT(APPEALS)-14, MUMBAI DATED 26-02-2010 AND THE G ROUNDS RAISED BY THE REVENUE READ AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN CANCELLING THE PENALTY LEVIED U/S 2 72A(2)(C) OF THE I.T. ACT AND IN INVOKING SECTION 273B OF HOLDING A REASONABLE CAUSE OF FAILURE ON THE GROUND THAT DELAY IN FILING OF TH E RETURN WAS MAINLY DUE TO UNAWARENESS OF TECHNICAL APPLICATION OF ELEC TRONIC FILING OF RETURN ON PART OF THE ASSESSEE. 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN APPLYING AND INVOKING SECTION 273B OF THE IT ACT 1961 ON THE GROUND THAT IT IS THE FIRST DEFAULT OF THE ASSESSEE ON ACCOUNT OF UNAWARENESS ABOUT ELECTRONIC FILING WHER EAS, IT IS SEEN THAT THE ASSESSEE IS HABITUAL DEFAULTER FOR SUBSEQUENT A SSESSMENT YEARS. 2. WE HAVE HEARD THE ARGUMENTS OF THE BOTH THE SIDE S AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS NOTED AT THE OUTSET FROM THE GROUNDS RAISED BY THE REVENUE, THE TAX EFFECT INVOLVED IN THIS APPEAL FIL ED BY THE REVENUE IS LESS THAN RS.3 LAKHS AND THIS POSITION HAS NOT BEEN DISPUTED EVEN BY THE LEARNED DR. AS PER THE CBDT INSTRUCTION NO. 3 OF 2011 ISSUED ON 09-02- 2011, THE MONETARY LIMIT FOR FILING OF AN APPEAL BY THE DEPARTMENT BEFORE THE TR IBUNAL HAS BEEN REVISED TO RS.3 LAKHS. AS DECIDED BY THE CBDT, APPEALS SHALL NOT BE FILED BY THE DEPARTMENT IN CASES WHERE TAX EFFECT DOES NOT EXCEED RS.3 LAKHS. IN THE CASE OF CIT VS. MADHUKAR INAMDAR (HUF) 318 ITR 149, THE HONBLE BOMBAY HIGH COURT HAS HELD THAT CBDT INSTRUCTION FIXING ANY MONETARY LIMIT FOR FILI NG THE APPEAL WOULD APPLY EVEN FOR THE PENDING CASES. KEEPING IN VIEW THE SAID DEC ISION OF HONBLE JURISDICTIONAL HIGH COURT AND THE BOARD INSTRUCTION NO. 3 OF 2011 DATED 09-02-2011, WE HOLD THAT THE PRESENT APPEAL FILED BY THE DEPARTMENT INV OLVING TAX EFFECT OF LESS THAN RS.3 LAKHS IS NOT MAINTAINABLE. THE SAME IS, THEREF ORE, DISMISSED AT THE THRESHOLD. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED ON THIS 18 TH DAY OF NOV., 2011. SD/- SD/- (B.R. MITTAL) ( P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 18 TH NOV., 2011. WAKODE 3 COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, I-BENCH. (TRUE COPY) BY ORDE R ASSTT. REGI STRAR, ITAT, MUMBAI BEN CHES, MUMBAI ,