ACIT CIRCLE -9(3), MUMBAI V. RUPRIT AGENCY PVT. LTD., MUMBAI

ITA 3531/MUM/2010

• Counselvise Citation: 353119914 RSA 2010
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 05-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SENTHIL KUMAR
• Assessee Lawyers: CO; V H DAGA
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI P.M. JAGTAP (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) ITA NO. 3531/MUM/2010 ASSESSMENT YEAR-2004-05 THE ACIT, CIRCLE - 9(3), AAYAKAR BHAVAN, MUMBAI-400 020 VS. SHRI RUPRIT AGENCY PVT. LTD., SAI RACHANA, GR. FLOOR, CORNER OF TAGORE ROAD, SANTACRUZ(W), MUMBAI-400 054 PAN- AABCR 8148L (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SENTHIL KUMAR RESPONDENT BY: V.H. DAGA & CO. O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 19.2.2010 PASSED BY THE LD. CIT(A)-20 FOR THE ASSESSMENT YEAR 2004-05. 2. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT BY INSTRUCTION NO. 3 DT. 9.2.2011, THE MONETARY LIMIT FOR FILING T HE DEPARTMENTAL APPEAL BEFORE THE APPELLATE TRIBUNAL HAS BEEN FIXED AT RS. 3 LACS I.E. TO SAY THAT DEPARTMENT APPEALS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMIT OF 3 LAKHS. 3. THE LD. DEPARTMENTAL REPRESENTATIVE SHRI SENTHIL KUMAR OBJECTED TO THE LD. COUNSELS PLEA. THE LD. DR RELI ED ON THE DECISION OF CIT VS CHHAJER PACKAGING & PLASTICS PVT. LTD. 300 ITR 180. THE LD. ITA NO. 3531/M//2010 2 DR FURTHER ARGUED THAT THE BOARDS INSTRUCTION IS TO BE APPLIED PROSPECTIVELY AND THAT IT MAKES NO REFERENCE TO PENDI NG MATTERS. 4. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND RE LIED ON THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MADHUKAR K. INAMDAR (HUF) 318 ITR 149 AND CIT VS PITHWA ENGG. W ORKS 276 ITR 519 (BOM) . 5. WE HEARD BOTH THE PARTIES. THE CASE OF CIT VS CHH AJER PACKAGING & PLASTICS PVT. LTD.300 ITR 180 RELIED ON B Y THE DR IS DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE. AT PARA 12 PAGE 184 OF THE DECISION IN THE CASE OF CHHAJER PACKAGING & PLASTICS PVT. LTD. IT HAS BEEN HELD AS FOLLOWS: OTHERWISE ALSO, PARAGRAPH 3 OF THIS CIRCULAR ITSELF SA VES CERTAIN APPEALS FROM BEING OBSTRUCTED DUE TO FINANCIAL LIMITS. PARAGRAPH 3 READS : THE BOARD HAS ALSO DECIDED THAT IN CASES INVOLVING S UBSTANTIAL QUESTION OF LAW OF IMPORTANCE AS WELL AS IN CASES WHE RE THE SAME QUESTION OF LAW WILL REPEATEDLY ARISE, EITHER IN THE CA SE CONCERNED OR IN SIMILAR CASES, SHOULD BE SEPARATELY CONSIDERED ON TH E MERITS WITHOUT BEING HINDERED BY THE MONETARY LIMITS. IT IS EVIDENT THAT, WHENEVER THERE IS A SUBSTANTIAL QUESTI ON OF LAW, OR QUESTION OF LAW WHICH IS LIKELY TO RECUR IN FUTURE, THE DEPARTMENT IS NOT PROHIBITED FROM FILING AND PURSUING APPEALS. WE BELI EVE THAT THE SAVING CLAUSE SAVES THE PRESENT APPEAL SINCE IT INVOLVES A QU ESTION OF LAW REGARDING INTERPRETATION OF SECTION 275(1)(C) OF THE ACT, AND MORE PARTICULARLY THE ASPECT OF MANNER IN WHICH THE LIMITATIO N SHOULD BE COMPUTED IN THE LIGHT OF THE SAID PROVISIONS. WE HAVE , THEREFORE, PROCEEDED TO HEAR THE ADVOCATES ON THE MERITS. 6. IN OUR OPINION THE CASE OF CIT VS CHHAJER WAS WIT H RESPECT TO INTERPRETATION OF 275 (1)(C) OF THE ACT AND HENCE C AME UNDER THE EXCEPTION CLAUSE UNDER THE CBDT CIRCULAR AND WAS NOT OBSTRUCTED BY THE MONETARY LIMIT OF RS. 3 LAKS PRESCRIBED BY THE CI RCULAR. THEREFORE THE CASE OF 300 ITR 180 IS INAPPLICABLE TO THE FACTS O F OUR CASE. ITA NO. 3531/M//2010 3 7. FURTHER THE ITAT MUMBAI A BENCH IN ITA NO. 216 5/M/2010 FOR ASSESSMENT YEAR 2004-05 IN THE CASE OF M/S. LAXMI JEWEL PVT. LTD. HAS HELD AS FOLLOWS: WE HAVE CONSIDERED THE ISSUE. THERE IS NO DOUBT THAT THE TAX EFFECT IN THIS CASE IF ONLY `. 2,07,512/-. AS PER INSTRUCTION NO. 3 OF 2011 DT. 9.2.2011 APPEAL BEFORE APPELLATE TRIB UNAL CAN BE FILED WHERE THE TAX EFFECT EXCEEDS THE MONETARY LIMI T OF `. 3,00,000/-. HOWEVER, CONSIDERING THE SIMILAR SITUATIO N WHERE TAX LIMITS WERE MODIFIED BY THE CBDT INSTRUCTION NO. 5 OF 2008 THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS MADHUKAR K. INAMDAR (HUF) (SUPRA) HELD THAT THE CIRCULAR WIL L BE APPLICABLE TO THE CASES PENDING BEFORE THE COURT EITHER FOR ADMI SSION OR FOR FINAL DISPOSAL. IN VIEW OF THE ORDER OF THE JURISDICT IONAL HIGH COURT WE HOLD THAT INSTRUCTION NO. 3 DT. 9.2.2011 IS APPLIC ABLE FOR THE APPEAL PREFERRED BY THE REVENUE. THEREFORE, THE AP PEAL IS DISMISSED ON THE ISSUE OF TAX EFFECT INVOLVED. EVEN OT HERWISE THERE IS NO CASE FOR THE REVENUE ON MERITS AS THE ISSUE W AS HELD IN AGAINST THE REVENUE BY THE ITAT ORDER IN THE CASE OF LIVING STORES JEWELLERY (P) LTD. VS. DCIT 31 SOT 323, WHICH THE CIT(A) FOLLOWED. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. RESPECTFULLY FOLLOWING THE ABOVE DECISION, WE DISMISS T HE REVENUES APPEAL. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 20 TH DAY OF MAY, 2011 SD/- SD/- (P.M. JAGTAP) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEM BER MUMBAI, DATED 20 TH MAY, 2011 RJ ITA NO. 3531/M//2010 4 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR D BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 3531/M//2010 5 DATE INITIALS 1 DRAFT DICTATED ON: 18.05. 201 1 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 18.05.2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______