DCIT CC 6(4), MUMBAI V. WELLDONE REAL ESTATE LTD, MUMBAI

ITA 4479/MUM/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2172 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 30-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M A Y ACIT R NO ND FLR PIRAMAL
• Keywords: Audit objection; Tax effect
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAMLAL NEGI, JUDICIAL MEMBER S. NO. ITA NO.& A.Y APPELLANT RESPONDENT APPELLANT BY RESPONDENT BY 1 4293/M/15, A.Y 2012-13 ACIT 20(2), R.NO.217, 2 ND FLR., PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400012 SHRI JAGSHI J. CHHEDA, PROP. SILVER DEVELOPERS, 9001, MERU HEIGHTS, 268, TELANG ROAD, MATUNGA (C.R), MUMBAI 400019 PAN:ACYPC2992B SHRI B. SATAYANARAYANA RAJU NONE 2. 2422/M/15, A.Y 2006-07 ITO 8(3)-1, R.NO.617, 6 TH FLR., AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 M/S. TASC CHEMICALS INDUSTRIES PVT. LTD. C-502, KAILASH ESPLANADE, LBS MARG, GHATKOPAR, MUMBAI 400086 PAN:AAACT3152H SHRI B. SATAYANARAYANA RAJU NONE 3. 4479/M/15, A.Y2008-09 DCIT, CC-6(4), R.NO.32(1), GROUND FLR. AAYKAR BHAVAN, MK ROAD, MUMBAI 400021 M/S. WELLDONE REAL ESTATE LTD., 82, MAKER CHAMBER III, NARIMAN POINT, MUMBAI 400021 PAN:AAACW6277G SHRI B. SATAYANARAYANA RAJU NONE 4. 4478/M/15, A.Y. 2007- 08 DCIT,CC-6(4), R.NO.32(1), AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 M/S. WELLDONE REAL ESTATE LTD., 82, MAKER CHAMBER III, NARIMAN POINT, MUMBAI 400021 PAN:AAACW6277G SHRI B. SATAYANARAYANA RAJU NONE 5. 2919/M/15, A.Y 2003-04 ITO, WARD 2(3), R.NO.13, 6 TH FLR., ASHAR I.T.PARK, WAGLE INDUSTRIAL ESTATE, ROAD, NO.16Z, M/S. DREAM HOUSE REALTORS, NEEL AKASH GANGA, GROUND FLR, SHOP NO.7, LAXMI PARK, NAYA NAGAR, MIRA SHRI B. SATAYANARAYANA RAJU NONE 2 ITA NO. 4293/M/15 & OTHER 13 APPEALS. THANE (W) 400 604 ROAD, (E), DIST. THANE 401 107 PAN:AADFD 9736B 6. 4860/M/15, A.Y 2012-13 DCIT 9(1)(1), R.NO.260A, 2 ND FLR., AAYKAR BHAVAN, MK ROAD, MUMBAI - 20 M/S. A. SURTI DEVELOPERS PVT. LTD., NAND PARKAR RAOD, OPP. POST OFFICE, VILE PARLE (E), MUMBAI 400 057 PAN: AAACA8288R SHRI B. SATAYANARAYANA RAJU NONE 7. 592/M/15, A.Y 2006-07 ACIT-25(1), C-12, 7 TH FLR., R.NO.711, PRATYAKSH KAR BHAVAN, BKC, BANDRA(E), MUMBAI 51 SHRI SHARAD KUMAR SARAF, A-25, MIDC INDL. ESTATE, ANDHERI (E), MUMBAI 400051 PAN:AAAIPS 1238A SHRI B. SATAYANARAYANA RAJU MR. VARUN CHATURVEDI 8. 807/M/15, A.Y 2005-06 DCIT, CC 8(1), R.NO.656, 6 TH FLR, AAYKAR BHAVAN, MK ROAD,MUMBAI 20 SMT. INDRA GAGGAR, 41-42, 4 TH FLR., GAURAV EXTN., FILM CITY RD., GOKULDHAM, GOREGAON(E), MUMBAI 400063 PAN:AEXPG3889B SHRI B. SATAYANARAYANA RAJU NONE. 9. 811/M/15,A .Y 2006-07 DCIT, CC 8(1), R.NO.656, 6 TH FLR, AAYKAR BHAVAN, MK ROAD,MUMBAI 20 SHRI SURESH GAGGAR, 302, GAURAV APTS., GOKULDHAM, GOREGAON (E) MUMBAI 400063 PAN:ABLPG 3809K SHRI B. SATAYANARAYANA RAJU NONE 10. 806/M/15.A .Y.2006-07 ITO WD. 25(1)(1), C-12,R.NO.705, 7 TH FLR. PRAYAKSHAKAR BHAVAN, BKC, BANDRA(E), MUMBAI -51 M/S. SANJAYKUMAR MATHUR HUF, 501, AMEY HOUSE, OPP. SONY MONY, JP ROAD,RAJKUMAR CORNER, ANDHERI(W), MUMBAI 400058 PAN:AAQHS0880J SHRI B. SATAYANARAYANA RAJU NONE 11. 1101/M/15, A.Y.2011-12 ITO 10(1)(3), R.NO.25B, GR.FLR., AAYKAR BHAVAN, MK RAOD, MUMBAI 20 MS. NAMRITA KABRA, 605-606, MINAL APTS., OFF. SAKI VIHAR ROAD, ANDHERI(E), MUMBAI 72 PAN:AGAPK 1819K SHRI B. SATAYANARAYANA RAJU NONE 3 ITA NO. 4293/M/15 & OTHER 13 APPEALS. 12. 7525/M/14, A.Y.2011-12 ACIT, CC 4(2), R.NO.411, 4 TH FLR., AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 M/S. CHOICE INTERNATIONAL LTD., SHREE SHAKAMBHARI CORPORATE PARK, 156-158, CHAKRAVARTI ASHOK SOCIETY, JB NAGAR, ANDHERI (E), MUMBAI 400099 PAN:AAACC4600K SHRI B. SATAYANARAYANA RAJU NONE 13. 7528/M/14, A.Y.2005-06 DCIT 12(1)(1), R.NO.223, 2 ND FLR., AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 M/S. ACRYPLAST PVT. LTD., C/O. G.P.MEHTA & CO., 807, TULSIANI CHAMBERS, NARIMAN POINT, MUMBAI 400021 PAN:AADCA 1819M SHRI B. SATAYANARAYANA RAJU NONE 14. 7388/M/14, A.Y.2007-08 ACIT 19(2), 2 ND FLR, MATRU MANDIR, TARDEO RD., MUMBAI 07 M/S. METAL GEMS, 85-87, KUMBHARWADA, 2 ND PATHAN STREET, MUMBAI 400004 PAN:AADFM0423E SHRI B. SATAYANARAYANA RAJU NONE DATE OF HEARING : 29/12/2015 DATE OF PRONOUNCEMENT : 29/12/2015 ORDER PER G.S. PANNU, AM: THE CAPTIONED 14 APPEALS, PREFERRED BY THE REVENU E, HAVE BEEN LISTED BY THE REGISTRY BEFORE THE BENCH ON THE GROU ND THAT THEY DO NOT SURVIVE FOR CONSIDERATION IN VIEW OF THE CBDT CIRCU LAR NO.21/2015 DATED 10/12/2015. 2. THE CBDT VIDE CIRCULAR DATED 10/12/2015(SUPRA) H AS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPART MENT BEFORE THE 4 ITA NO. 4293/M/15 & OTHER 13 APPEALS. TRIBUNAL RETROSPECTIVELY. THE TAX EFFECT IN DISPUT E IN THE CAPTIONED APPEALS IS STATED TO BE BELOW THE MONETARY LIMIT OF RS.10.00 LACS SPECIFIED IN THE CBDT CIRCULAR DATED 10/12/2015 (SU PRA). 3. IN THIS BACKGROUND, LD. DEPARTMENTAL REPRESENTAT IVE APPEARING FOR THE REVENUE WAS REQUIRED TO STATE HIS POSITION. HE HAS NOT BROUGHT OUT ANY MATERIAL TO SUGGEST THAT THE CAPTIONED APPE ALS ARE PROTECTED BY ANY OF THE CIRCUMSTANCES PRESCRIBED IN PARA-8 OF TH E CIRCULAR DATED 10/12/2015 (SUPRA) AND AS A CONSEQUENCE SUCH APPEAL S ARE LIABLE TO BE TREATED AS WITHDRAWN/NOT PRESSED. THE RELEVANT POR TION 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. 5 ITA NO. 4293/M/15 & OTHER 13 APPEALS. 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 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 APPEALS, THEY ARE DEEMED TO BE WITHDRAWN/ NOT PRESSED AS THEIR FILING IS IN CONTRAVENTION OF THE CBDT CIRCUL AR DATED 10/12/2015(SUPRA). 5. IF ON A LATER DATE, IT IS FOUND THAT THE TAX EFF ECT IN DISPUTE IN ANY OF THE CAPTIONED APPEAL IS MORE THAN THE LIMIT PRESCRIBED IN THE CIRCULAR DATED 10/12/2015 (SUPRA) OR IT IS COVERED BY ANY OF THE EXCEPTIONS PROVIDED IN PARA 8 OF THE CIRCULAR (SUPR A), THEN, THE 6 ITA NO. 4293/M/15 & OTHER 13 APPEALS. DEPARTMENT SHALL BE AT LIBERTY TO APPROACH THE TRIB UNAL FOR RECALL OF THE ORDER AND RE-INSTITUTION OF APPEAL FOR ADJUDICA TION ON MERITS. THE TRIBUNAL SHALL CONSIDER SUCH APPLICATIONS, IF ANY, AS PER LAW. 6. IN CONCLUSION, BY APPLYING THE CBDT CIRCULAR DAT ED 10/12/2015(SUPRA), THE CAPTIONED APPEALS OF THE REV ENUE ARE DISMISSED AS WITHDRAWN/NOT PRESSED. ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF THE HEARING ON 29/12/2015. SD/ SD/- (RAMLAL NEGI) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 29 /12/2015 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 VM , SR. PS