ITO 25(3)(2), MUMBAI V. KULDEEP GANESH HAKE, MUMBAI

ITA 4284/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83731 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEEVAN LAL LAVADIYA
• Keywords: Unexplained cash credit; Tax effect

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , ! , ' BEFORE SHRI JOGINDER SINGH, JM AND SHRI RAJENDRA, A M ITA NO.4284/MUM/2013 (A.Y.2008-09) ITO-25(3)(2) C-11, R.NO.306 PRATYAKSHAKAR BHAVAN BANDRA-KURLA COMPLEX, BANDRA (E) MUMBAI-400 051. # # # # / VS. SHRI KULDEEP GANESH HAKE 202, SURGANGA CHS LTD. SECTOR-1, PLOT NO.24, CHARKOP, KANDIVALI (W) MUMBAI-400 067. ( %& / // / APPELLANT) ( '(%& / RESPONDENT) %& ) * ) * ) * ) * /APPELLANT BY : SHRI JEEVANLAL LAVADIYA '(%& ) * ) * ) * ) * /RESPONDENT BY : NONE # ) +, / / / / DATE OF HEARING : 11.09.2014 -./ ) +, / DATE OF PRONOUNCEMENT : 17.09.2014 0 0 0 0 / / / / O R D E R PER JOGINDER SINGH (JM)/ : THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 14/3/13 OF THE LD. FIRST APPELLATE AUTHORITY ON THE GROUND WHE THER THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.1,40,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT VIOLATING RULE 46A AS NO EX PLANATION WAS SUBMITTED BY THE ASSESSEE AND THE LD. CIT(A) ADMITT ED FRESH EVIDENCE STATING THAT THE SAID SUM BELONGS TO THE FATHER OF THE ASSESSEE AND FURTHER ADDED IN ESTIMATING NET PROFIT @1.67% INSTE AD OF GROSS PROFIT ITA NO.4284/MUM/2013 (A.Y. 2008-09) 2 @11.50% ESTIMATED BY THE AO. MORE SPECIFICALLY WHEN THE AO HAS GIVEN COMPARABLE CASES WHILE ESTIMATING THE GROSS PROFIT. 2. DURING HEARING OF THIS APPEAL, AT THE OUTSET, WE FIND THAT THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS BELOW PRESCR IBED MONETARY LIMIT. NOBODY REPRESENTED THE ASSESSEE . ON 10/9/14 THE LD . DR WAS ASKED TO EXPLAIN THE TAX EFFECT AND THE APPEAL WAS ADJOURNED FOR 11/9/2014. AT THE TIME OF HEARING THE LD. DR FAIRLY CONTENDED THA T THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT. 3. WE HAVE PERUSED AND CONSIDERED THE MATERIAL AVAI LABLE ON RECORD. SINCE THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW PRESCRIBED LIMIT, THEREFORE, WE ARE OF THE VIEW THAT THE APPEAL OF TH E REVENUE IS NOT MAINTAINABLE. THE CENTRAL BOARD OF DIRECT TAXES (CB DT) VIDE INSTRUCTION NO. 5 DATED 10/7/2014 HAS PRESCRIBED THE MONETARY L IMIT FOR FILING THE APPEAL BY THE DEPARTMENT WHERE TAX EFFECT IS LESS T HAN RS.4.00 LACS. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF MADHUKAR I NAMDAR (185 TAXMANN. 101) HAS HELD THAT CBDT CIRCULAR ARE APPLI CABLE WHERE THE APPEALS ARE PENDING AND NOT ONLY TO THE APPEAL WHIC H ARE TO BE FILED AFTER THE CIRCULAR WAS ISSUED. IN VIEW OF THE AFORE MENTIONED INSTRUCTIONS OF THE CBDT AND SINCE THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS BELOW THE PRESCRIBED LIMIT, THEREFORE, THE APPEAL O F THE REVENUE IS NOT MAINTAINABLE. OUR VIEW IS FURTHER FORTIFIED BY THE DECISION OF H BENCH IN ITA NO.4284/MUM/2013 (A.Y. 2008-09) 3 ITO VS. SURENDERMAL R. LODHA (ITA NO.1628/MUM/11 AS SESSMENT YEAR 2004-05 ORDER DATED 25/8/2014), CONSEQUENTLY, THIS APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 17 TH DAY OF SEPTEMBER, 2014 . 0 ) -./ 1 #2 17.09.2014 . ) : SD/- SD/- (RAJENDRA) (JOGINDER SINGH) ! ! ! ! / ACCOUNTANT MEMBER ! ! ! ! / JUDICIAL MEMBER MUMBAI; 1 # DATED : 17 TH SEPT. 2014. JV. 0 ) '+; <;/+ 0 ) '+; <;/+ 0 ) '+; <;/+ 0 ) '+; <;/+/ COPY OF THE ORDER FORWARDED TO : 1. %& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. = ( ) / THE CIT, MUMBAI. 4. = / CIT(A)-13, MUMBAI 5. ;@: '+# , , / DR, ITAT, MUMBAI 6. :A B / GUARD FILE. 0# 0# 0# 0# / BY ORDER, (;+ '+ //TRUE COPY// C CC C/ // /D D D D (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI