ACIT 19(1), MUMBAI V. RAJESH P. WADHWA, MUMBAI

ITA 4173/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92258 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 26-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 24-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA P YADAV
• Assessee Lawyers: NEELAM C JADHAV
• Keywords: Tax effect
• Section: 143(3); 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. 4173/MUM/2013 ASSESSMENT YEAR: 2007-08 ACIT - 19(1) R. NO. 322 PIRAMAL CHAMBERS, 3 RD FLOOR, PAREL MUMBAI 400 012 VS. SHRI RAJESH P. WADHWA, B-12, PREM SAGAR, RCADE, LINKING ROAD, KHAR (W), MUMBAI 400 052 PAN:AAHPW 3642 H (APPELLANT) (RESPON DENT) ASSESSEE BY : MS. NEELAM C. JADHAV REVENUE BY : SHRI AKHILEN DRA P. YADAV DATE OF HEARING : 26.03.2015 DATE OF PRONOUNCEMENT : 10 .04.2015 O R D E R PER AMIT SHUKLA, JM: THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST ORDER DATED 04.03.2013, PASSED BY THE LD.CIT(A)-22, FOR T HE QUANTUM OF ASSESSMENT U/S 143(3) OF THE ACT, FOR THE A.Y. 200 7-08, ON THE FOLLOWING GROUNDS:- 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS.6,91,178/- ON ACCOUNT OF GROSS PROFIT WITHOUT APPRECIATING THA T THE ASSESSEE HAD JUST DEBITED THE EXPENSES BUT NOT SHOWN ANY SUP PORTING EVIDENCE TO JUSTIFY THE SAME AND ALSO NOT MAINTAINE D P&L ACCOUNT TO EVIDENCE THE BUSINESS VENTURE PROFITS AND THUS T HE ASSESSEE FAILED TO DISCHARGE HIS DUTY THEREBY THE AO HAD COR RECTLY INVOKED THE PROVISIONS OF SECTION 145 OF THE I.T. ACT, 1961 . ITA NO. 4173/MUM/2013 ASSESSMENT YEAR: 2007-08 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS.1,04,404/- ON ACCOUNT OF VARIATION OF GROSS PROFIT PERCENTAGE AS PER THE MOU IGNORING THE FACTS THAT THERE IS A DIFFERENCE I N THE PROFIT SHARING RATIO SHOWN BY THE ASSESSEE WHICH CANNOT BE ACCEPTED AS GENUINE. 2. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT OF THE DISPUTED ADDITION IS ONLY RS.2,66 ,793/-, WHICH IS LESS THAN RUPEES THREE LAKHS [IN VIEW OF CBDT INSTRUCTIO N NO. 3 OF 2011 DATED 09.02.2011]. HE HAS ALSO FILED THE WORKING OF THE TAX EFFECT. HE FURTHER SUBMITTED THAT IN LIGHT OF SERIES OF HONBL E BOMBAY HIGH COURT DECISIONS, IT IS A CONSISTENT VIEW THAT THE CBDT IN STRUCTION PRESCRIBING MONITORY LIMIT FOR FILING OF APPEAL BY THE DEPARTME NT IS MANDATORY AND IS ALSO APPLICABLE FOR PENDING APPEALS ALSO. IN SUPPOR T OF HIS CONTENTION, HE RELIED UPON THE DECISION OF MADHUKAR INAMDAR (HUF) 318 ITR 149 [BOM]; CIT VS. VIRENDRA & CO. [(2012) 77 DTR 210 (B OM) . 3. THE LD. DR AGREED THAT A TAX EFFECT IS LESS THAN 3 LAKHS. 4. IN VIEW OF THE AFORESAID ADMITTED FACTS THAT TAX EFFECT IS LESS THAN 3 LAKHS THEREFORE, IN VIEW OF THE CBDT INSTRUCTION NO. 3 (SUPRA), THE APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE AND AC CORDINGLY, THE SAME IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF APRIL, 2015. SD/- SD/- (B.R. BASKARAN) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 10 .04.2015 *SRIVASTAVA ITA NO. 4173/MUM/2013 ASSESSMENT YEAR: 2007-08 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR D BENCH // TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.