DCIT CIR 3(3), MUMBAI V. R.T. EXPORTS LTD, MUMBAI

ITA 3721/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4245 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-10-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 25-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Audit objection; Difference of opinion; Tax effect; Change of opinion; Revenue expenditure

Judgement Text

M/S R T EXPORTS LTD ITA NO. 3721 /MUM/20 1 2 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI , , BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI RA MIT K OCH AR , ACCOUNTAN T MEMBER ITA NO. : 3721 /MUM/20 1 2 (ASSESSMENT YEAR: 1998 - 99 ) ACIT - CIRCLE 3 (3) , ROOM NO. 609, 6 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400 0 20 VS M/S R T EXPORTS LTD , 508, DALAMAL HOUSE, J B ROAD, NARIMAN POINT, MUMBAI - 400 021 .: PAN: A A A CR 3524 M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B S BIST RESPONDENT BY : SHRI GYANESHWAR KATARAM /DATE OF HEARING : 1 0 - 0 2 - 201 6 / DATE OF PRONOUNC EMENT : 1 0 - 0 2 - 2016 ORDER : . . : PER AMIT SHUKLA , JM : T HE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST IMPUGNED ORDER DATED 1 6 . 0 1 .201 S , PASSED BY CIT(A) - 7 , MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143( 3) /147 FOR THE ASSESSMENT YEAR 1998 - 99 ON THE FOLLOWING GROUNDS OF APPEAL: 1 . 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) WAS RIGHT IN HOLDING THAT THE RE - OPENING OF ASSESSMENT WAS CLUE TO MERE CHANGE OF OPINION AND THEREFORE BAD IN LAW, WITHOUT APPRECIATING THE FACT THAT THE ASSESSMENT WAS RE - OPENED IN VIEW OF CLEAR POSITION OF LAW REGARDING TAXABILITY OF INTEREST EXPENSE WRONGLY CLAIMED IN RESPECT OF CAPITAL WORK IN PROGRESS.' 2. 'WHETHER ON THE FACTS AND CIRCUMST ANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) WAS RIGHT IN ALLOWING ASSESSEE'S APPEAL BY PLACING RELIANCE ON THE HON'BLE APEX COURT'S DECISION IN THE CASE OF KELVINATOR OF INDIA LTD. (320 ITR 561) WITHOUT APPRECIATING THE FACT THAT THERE WAS NO CHANGE O F OPINION IN THIS CASE AND LOOKING TO THE NATURE OF EXPENDITURE INCURRED THERE IS ONLY ONE OPINION POSSIBLE ON THE AVAILABLE FACTS, THAT IS THE EXPENDITURE CLAIMED IS NOTHING BUT CAPITAL M/S R T EXPORTS LTD ITA NO. 3721 /MUM/20 1 2 2 IN NATURE AND IT CANNOT BE ALLOWED AS REVENUE EXPENDITURE.' 3. 'WHE THER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE REVENUE IS BOUND TO ACCEPT THE CASES IN WHICH CLEAR - CUT VIOLATION OF PROVISIONS OF THE ACT IS ESTABLISHED, ONLY ON THE GROUND THAT A REGULAR ASSESSMENT WAS COMPLETED EARLIER?' 4(A). 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN JAW, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT RE - OPENING OF THE ASSESSMENT WAS NOT (LONE IN VIEW OF THE REVENUE AUDIT OBJECTION PER SE BUT IN VIEW OF THE CLEAR POSITION OF LAW REGARDING TAXABILITY O F INTEREST EXPENSE WRONGLY CLAIMED IN RESPECT OF CAPITAL WORK - IN - PROGRESS.' 4(B). 'WITHOUT PREJUDICE TO THE ABOVE, WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT RE OPENING OF THE ASSESSMENT WAS DONE FOR THE PURPOSE OF TAKING REMEDIAL ACTION IN ACCORDANCE WITH THE INSTRUCTIONS LAID DOWN BY THE BOARD IN INSTRUCTION NO. 9/2006, DATED 07.11.2006.' 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSESSEE , AT THE OUTSET , SUBMITTED THAT THE TAX EFF ECT ON THE DISPUTED ISSUE AS RAISED IN THE GROUNDS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS. 10 LAKHS. THEREFORE, THE SAID APPEAL IS NOT MAINTAINABLE. HE ALSO GAVE THE FOLLOWING WORKING OF TAX EFFECT : - SR.NO. PARTICULARS AMOUNT 1 RELIEF ALLOWED BY CIT( A) 7,48,738 2 INCOME UNDER DISPUTE 7,48,738 3 TAX @ 33.99% ON SR. NO.2 (TAX 30% ON TOTAL INCOME + 10% SURCHARGE + 3% EDUCATION AND HIGHER EDUCATION CESS) 2,54,496 WHICH FACT HAS BEEN ADMITTED BY THE LD. DR ALSO. NOW IN THE WAKE OF CBDTS C IRCULAR NO. 21 OF 2015 DATED 10.12.2015 , THE MONETARY LIMIT PRESCRIBED FOR FLING OF APPEAL BEFORE THE TRIBUNAL IS RS. 10 LAKHS. FURTHER IT HAS ALSO BEEN CLARIFIED THAT THIS CIRCULAR WILL APPLY ON PENDING APPEALS ALSO WHICH IS EVIDENT FR OM PARA 10 OF THE IMPUGNED CIRCULAR, WHICH READS AS UNDER: - 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDR AWN/NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE M/S R T EXPORTS LTD ITA NO. 3721 /MUM/20 1 2 3 GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. THUS, THE APPEAL OF THE REVENUE IS TREATED AS DISMISSED AS NON - MAINTAINABLE . 3. IN THE RESULT, APPE AL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 0 TH FEBRUAR Y , 2016 . SD/ - SD/ - ( ) ( ) ( RAMIT KOCHAR ) ( AMIT SHUKLA ) ACCOUNTANT ME MBER JUDICIAL MEMBER MUMBAI, DATE: 1 0 TH FEBRUAR Y , 2016 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 7 , MUMBAI . 4 ) THE COMMISSIONER OF INCOME TAX - 3 , MUMBAI. 5 ) , , / THE D.R. D BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS