ITO 25(2)(3), MUMBAI V. SHREE SWASTIK DEVELOPERS, MUMBAI

ITA 3568/MUM/2010

• Counselvise Citation: 356819914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 07-09-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 06-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Assessee Lawyers: KUNAL GOKHALE
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI D.K. AGRWAL, (JUDICIAL MEMBER) AND SHRI RAJENDRA SINGH,(ACCOUNTANT MEMBER) ITA NO. 3568/MUM/2010 ASSESSMENT YEAR : 2004-05 INCOME TAX OFFICER WARD 25(2)(3) C-11, 1 ST FLOOR PRATYAKSHAKAR BHAVAN BANDRA (E) MUMBAI-400 051. ..( APPELLANT ) VS. M/S. SHREE SWASTIK DEVELOPERS 3, GURU PRASAD, CARTER ROAD NO.3 BORIVALI (E) MUMBAI-400 062. ..( RESPONDENT ) P.A. NO. (AAVFS 8876 P) APPELLANT BY : SHRI D.S. SUNDER SINGH RESPONDENT BY : SHRI KU NAL GOKHALE DATE OF HEARING : 7.9.2011 DATE OF PRONOUNCEMENT : 7 TH SEPTEMBER, 2011 O R D E R PER RAJENDRA SINGH (AM). THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 5.2.2010 OF CIT(A) FOR THE ASSESSMENT YEAR 2004-05. THE REVENUE HAS RAISED DISPUTE REGARDING THE DECISION OF CIT(A) TO LEVY PENALTY UNDER SECTION 271(1)(C) AMOUNTING TO RS.63,226/- . 2. WE HAVE HEARD BOTH THE PARTIES IN THE MATTER. T HE TAX EFFECT IN THIS CASE IS LESS THAN RS.3.00 LACS WHICH IS ADMITTED BY BOTH THE PARTIES. AS PER THE CBDT INSTRUCTION NO.2 DATED 24.10.2005 THE REVE NUE AUTHORITIES ARE NOT AUTHORISED TO FILE APPEAL BEFORE THE TRIBUNAL IN CA SE TAX EFFECT IS LESS THAN ITA NO.3568/M/10 A.Y:04-05 2 RS.2.00 LACS. THE SAID LIMIT WAS RAISED TO RS.3.00 LACS VIDE INSTRUCTION NO.3 OF 2011 DATED 9.2.2011 OF CBDT. THE HONBLE BOMBA Y HIGH COURT IN THE CASE OF CIT VS. CAMCO COLOR CO. (254 ITR 565) HAVE HELD THAT THE APPEAL FILED BY THE REVENUE AUTHORITIES IN CONTRAVENTION O F THE INSTRUCTION OF CBDT IS NOT MAINTAINABLE. THE HONBLE HIGH COURT OF BOMBAY I N CASE OF PITHWA ENGINEERING WORKS (276 ITR 519) HAVE ALSO HELD THAT THE INSTRUCTION ISSUED BY THE CBDT PRESCRIBING TAX LIMIT FOR FILING APPEAL BEFORE TRIBUNAL OR HIGH COURT WOULD ALSO APPLY TO PENDING APPEALS EVEN THO UGH ON THE DATE OF FILING APPEALS, THE MONETARY LIMIT MAY HAVE BEEN LOWER. I N THIS CASE ON THE DATE OF FILING APPEAL THE MONETARY LIMIT WAS RS .2.00 LACS WHICH HAS NOW BEEN RAISED TO RS.3.00 LACS. THEREFORE, IN VIEW OF THE J UDGMENT OF HONBLE BOMBAY HIGH COURT IN CASE OF PITHWA ENGINEERING WORKS (SUP RA), THE APPEAL FILED BY THE REVENUE IN THIS CASE IS NOT MAINTAINABLE AS TAX EFFECT IS LESS THAN RS .3.00 LACS. WE, THEREFORE, DISMISS THE APPEAL OF THE REV ENUE AS NON-MAINTAINABLE. 3. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 7.9.2011. SD/- SD/- (D.K. AGARWAL) (RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 7.9.2011. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.