ACIT CEN CIR 11, MUMBAI V. ANURADHA KHANDELWAL, MUMBAI

ITA 4406/MUM/2010

• Counselvise Citation: 440619914 RSA 2010
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-11-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 28-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: SURINDER MEHRA
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, A ND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 4406/MUM./2010 (ASSESSMENT YEAR : 2008-09 ) ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-11, 11 TH FLOOR OLD CGO BUILDING ANNEXE 101, M.K. ROAD, MUMBAI 400 020 .. APPELLANT V/S MRS. ANURADHA KHANDELWAL 13, PREM NIWAS, ALTA MOUNT ROAD MUMBAI 400 026 PAN AGHPK6142N .... RESPONDENT REVENUE BY : MR. P.K.B. MENON ASSESSEE BY : MR. SURINDER MEHRA DATE OF HEARING 16.11.2011 DATE OF ORDER 25.11.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL FILED BY THE REVENUE, IS DIRECTED AGAI NST THE IMPUGNED ORDER DATED 18 TH JANUARY 2010, PASSED BY THE COMMISSIONER (APPEALS) - XXXVII, MUMBAI, FOR ASSESSMENT YEAR 2008-09. GROUND S RAISED BY THE REVENUE, READ AS FOLLOWS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) ERRED IN NOT CONFIRMING THE ADDITION MADE BY AO REGARDING MRS. ANURADHA KHANDELWAL ITA NO. 4406/MUM./2010 2 DISALLOWANCE OF RS.7,52,750/- IN RESPECT OF ONE DIA MOND RING FOUND ON PERSON DURING THE COURSE OF SEARCH EVEN THOUGH ASSE SSEE FAILED TO PRODUCE THE EVIDENCE AT THE TIME OF ASSESSMENT PROC EEDINGS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) ERRED IN TAKING INTO CONSIDERATION THAT JUST BECAUSE SOME JEWELLERY HAS NOT BEEN SEIZED DURING THE COURSE OF SEARCH DOES MEAN THAT IT IS FULLY ACCOUNTED. 2. BOTH THE PARTIES AGREE BEFORE US THAT THE TAX EFFEC T IN THE REVENUES APPEAL IS LESS THAN ` 3,00,000. AS PER CBDT INSTRUCTION NO.3 OF 2011, DA TED 9 TH FEBRUARY 2011, THE APPEAL BEFORE THE APPELLATE TRI BUNAL CAN BE FILED BY THE REVENUE, WHEN THE TAX EFFECT EXCEEDS THE MONITO RY LIMIT OF ` 3,00,000. 3. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V/ S MADHUKAR K. INAMDAR (HUF), 318 ITR 149 (BOM.) HELD AS FOLLOWS:- THE CIRCULAR DATED MAY 15, 2008 IN GENERAL AND PAR AGRAPH (5) THEREOF IN PARTICULAR LAY DOWN THAT EVEN IF THE SAME ISSUE, IN RESPECT OF THE SAME ASSESSEE, FOR OTHER ASSESSMENT YEARS IS INVOLV ED, THE DEPARTMENT SHOULD NOT FILE APPEAL, IF THE TAX EFFEC T IS LESS THAN ` 4 LAKHS. IN OTHER WORDS, EVEN IF THE QUESTION OF LAW IS OF RECURRING NATURE, THE REVENUE IS NOT EXPECTED TO FILE APPEALS IN SUCH CASES, IF THE TAX IMPACT IS LESS THAN THE MONETARY LIMIT FIXE D BY THE CENTRAL BOARD OF DIRECT TAXES. THE BOARD HAS ALSO ISSUED A CIRCULAR ON JUNE 5, 2007, DIRECTING THE DEPARTMENT TO EXAMINE ALL APPEA LS PENDING BEFORE THE COURT ON A CASE TO CASE BASIS WITH FURTHER DIRE CTION TO WITHDRAW CASES WHEREIN THE CRITERIA OF MONETARY LIMITS AS PE R THE PREVAILING INSTRUCTION ARE NOT SATISFIED, UNLESS THE QUESTION OF LAW INVOLVED OR RAISED IN APPEAL OR REFERRED TO THE HIGH COURT FOR OPINION IS OF A RECURRING NATURE REQUIRED TO BE SETTLED BY THE HIGH ER COURT. THE CIRCULAR MAKES IT CLEAR THAT ON THE DATE OF ISSUANC E OF THE CIRCULAR, PREVAILING INSTRUCTIONS FIXING MONETARY LIMIT WILL HOLD GOOD EVEN FOR PENDING CASES. THE CIRCULAR DATED MAY 15, 2008 WOUL D BE APPLICABLE TO PENDING CASES REQUIRING THE DEPARTMENT TO WITHDRAW CASES WHEREIN THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS. THE CIRCULAR DATED MAY 15, 2008, WOULD BE APPLICABLE TO CASES PE NDING BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL AN D IT IS BINDING ON THE REVENUE. 4. SIMILAR VIEW WAS TAKEN BY THE HON'BLE JURISDICTIONA L HIGH COURT IN THE JUDGMENT IN CIT V/S PITHWA ENGINEERING WORKS, (2005 ) 276 ITR 519 (BOM.), AND THE HON'BLE DELHI HIGH COURT IN M/S. P.S. JAIN & CO., 335 ITR 591 (DEL.). MRS. ANURADHA KHANDELWAL ITA NO. 4406/MUM./2010 3 APPLYING THE PROPOSITIONS LAID DOWN IN THESE CASE L AWS TO THE FACTS OF THE PRESENT CASE, WE DISMISS THE REVENUES APPEAL. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH NOVEMBER 2011 SD/- V. DURGA RAO JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 25 TH NOVEMBER 2011 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, A BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI