ITO WD 1(4), KALYAN V. SUNIL R. PHADTARE (HUF), THANE

ITA 3653/MUM/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3600 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 15-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R M MADHAVI
• Keywords: Audit objection; Tax effect
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO. 3653 /MUM/2015 (ASSESSMENT YEAR : 2006-07) INCOME TAX OFFICER, WARD 1(4), KALYAN, 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR, KHADAKPADA, KALAYN. ... APP ELLANT VS. SUNIL R. PHADTARE (HUF), H.NO.219, PHADTARE SADAN, LAHOTI COMPOUND, KALYAN ROAD, BHIWANDI, DIST. THANE 421 302 PAN:AAPHS 4915P .... RESPONDENT APPELLANT BY : MS. R.M.MADHAVI RESPONDENT BY : SHRI DEVENDRA JAIN DATE OF HEARING : 05/07/2016 DATE OF PRONOUNCEMENT : 05/07/2016 ORDER THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAININ G TO ASSESSMENT YEAR 2005-06 IS DIRECTED AGAINST AN ORDE R PASSED BY CIT(A)- 2, MUMBAI DATED 04/03/2015, WHICH IN TURN ARISES OU T OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3 ) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 03 /03/2014. 2. THE CBDT VIDE CIRCULAR NO.21/2015 DATED 10/1 2/2015 HAS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS B Y THE DEPARTMENT BEFORE THE TRIBUNAL RETROSPECTIVELY. THE TAX EFFEC T IN DISPUTE IN THE 2 ITA NO. 3653 /MUM/2015 (ASSESSMENT YEAR : 2006-07) CAPTIONED APPEAL IS STATED TO BE BELOW THE MONETARY LIMIT OF RS.10.00 LACS SPECIFIED IN THE CBDT CIRCULAR DATED 10/12/201 5 (SUPRA). 3. IN THIS BACKGROUND, LD. DEPARTMENTAL REPRESENTAT IVE APPEARING FOR THE REVENUE WAS REQUIRED TO STATE HER POSITION. SHE HAS NOT BROUGHT OUT ANY MATERIAL TO SUGGEST THAT THE CAPTIO NED APPEAL IS PROTECTED BY ANY OF THE CIRCUMSTANCES PRESCRIBED IN PARA-8 OF THE CIRCULAR DATED 10/12/2015 (SUPRA) AND AS A CONSEQUE NCE SUCH APPEAL IS LIABLE TO BE TREATED AS WITHDRAWN/NOT PRESSED. THE RELEVANT PORTION OF THE CIRCULAR DATED 10/12/2015 (SUPRA) IS REPRODUCED BELOW:- 3.HENCEFORTH APPEALS/SLPS SHALL NOT BE FILED IN CAS ES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER:- SL. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMI TS (IN RS.) 1. BEFORE APPELLATE TRIBUNAL 10,00,000 2. BEFORE HIGH COURT 20,00,000 3. BEFORE SUPREME COURT 25,00,000 .................................................. ................................................... ............................ 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE B EEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME I N RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREI NAFTER REFERRED TO AS 'DISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUDE ANY INTE REST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. I N CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOM E, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDU CED IN THE ORDER TO BE APPEALED AGAINST. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAI LED 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 ARE UNDER CHALLENGE, OR (B) WHERE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR C IRCULAR HAS BEEN HELD 3 ITA NO. 3653 /MUM/2015 (ASSESSMENT YEAR : 2006-07) TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN A SSETS/ BANK ACCOUNTS. 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE S HALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OTHER THAN INCOME TA X. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVER NED BY RELEVANT PROVISIONS OF STATUTE & RULES. FURTHER, FILING OF APPEAL IN CA SES OF INCOME TAX, WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUC H AS THE CASE OF REGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT, 1961, SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AN D DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR C ASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIB UNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWAL NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. (UNDERLINED FOR EMPHASIS BY US) 4. WITHOUT GOING INTO THE MERIT OF THE ISSUES RAISE D IN THE CAPTIONED APPEAL, THIS APPEAL IS DEEMED TO BE WITHD RAWN/NOT PRESSED AS ITS FILING IS IN CONTRAVENTION OF THE C BDT CIRCULAR DATED 10/12/2015(SUPRA). 6. IN CONCLUSION, BY APPLYING THE CBDT CIRCULAR DAT ED 10/12/2015(SUPRA), THE CAPTIONED APPEAL OF THE REVE NUE IS DISMISSED AS WITHDRAWN/NOT PRESSED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COU RT AT THE CONCLUSION OF THE HEARING ON 05/07/2016 SD/- (G.S. PANNU) ACCOU NTANT MEMBER MUMBAI, DATED 05/07/2016 VM , SR. PS 4 ITA NO. 3653 /MUM/2015 (ASSESSMENT YEAR : 2006-07) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI