ITO 11(2)(1), MUMBAI V. DR. AMITA S. KAPADIA, MUMBAI

ITA 4763/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1897 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 14-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAURYA PRATAP SHRI SATISH MODY
• Keywords: Tax effect

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAM IT KOCHAR, ACCOUNTANT MEMBER ITA NO.4763 /MUM/2011 ASSESSMENT YEAR: 2006-07 ITO-11(2)-1, R. NO.441, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 / VS. DR. AMITA S KAPADIA, 5/57, A-1 APARTMENTS, 270, WALKESHWAR ROAD, MUMBAI-400006 ( / REVENUE) ( !'# /ASSESSEE) PAN. NO. AHOPK8474H $ % & ' / DATE OF HEARING : 16/12/2015 & ' / DATE OF ORDER: 16/12/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 11/03/2011 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE REVENUE HAS RAISED FOLLOWING GROUNDS:- ! / REVENUE BY SHRI MAURYA PRATAP !'# ! / ASSESSEE BY SHRI SATISH MODY DR. AMITA S KAPADIA ITA NO.4763/MUM/2011 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) MUMBAI HAS ERRED IN HOLDING THAT ACQUISIT ION OF GOLD JEWELLERY STATED TO BE SOLD BY THE ASSESSEE WAS EXPLAINED TO THE EXTENT OF 800 GMS, EVEN THOUGH NO COGENT EVIDENCE IN THIS REGARD WAS F URNISHED BY ASSESSEE EITHER DURING ASSESSMENT OR DURING APPELLATE PROCEE DINGS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) MUMBAI HAS ERRED IN ACCEPTING THE ASEESSE E'S CONTENTION THAT GOLD JEWELLERY TO THE EXTENT OF 800 GRAMS REPRESENT ED JEWELLERY RECEIVED AT THE TIME OF MARRIAGE OF THE ASSESSEE AND BIRTH O F DAUGHTER, EVEN THOUGH NO SUCH EXPLANATION HAD BEEN GIVEN DURING AS SESSMENT PROCEEDINGS AND THE ASSESSEE HAD BEEN CHANGING HER STAND IN THIS REGARD DURING ASSESSMENT AND APPELLATE PROCEEDINGS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD.CIT(A) MUMBAI HAS ERRED IN HOLDING THAT PART OF THE CASH DEPOSITS OF RS.LL,50,8001- IN THE UNDISCLOSED BANK ACCOUNT OF T HE ASSESSEE REPRESENTED SALE PROCEEDS OF GOLD JEWELLERY, EVEN T HOUGH NO EVIDENCE IN THIS REGARD WAS FURNISHED BY THE ASSESSEE. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SHRI SATISH MODY, CONTENDED THAT THE APPEAL OF THE REVEN UE IS NOT MAINTAINABLE AS THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY SHRI MAURYA PRATAP, LD. DR. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE T HAT THE TOTAL INCOME COMPUTED BY THE ASSESSING OFFICER IS RS.40,29,750/-. THE CONTENTION OF THE LD. COUNSEL F OR THE ASSESSEE IS THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS GRANTED PART RELIEF TO THE ASSESSEE TO THE EXTE NT OF RS.6,21,633/- AND RS.9,70,213/- ON ACCOUNT OF GOLD JEWELLERY AND TELESCOPING OF CASH DEPOSITS, RESPECTIVELY, THU S, AS PER THE REMAINING ADDITION, THE TAX EFFECT COMES TO RS.4,77 ,553/-, DR. AMITA S KAPADIA ITA NO.4763/MUM/2011 3 WHICH IS BELOW THE PRESCRIBED LIMIT OF RS.10 LAKH. THIS FACTUAL MATRIX WAS CONSENTED TO BE CORRECT BY LD. DR. 2.2. IN VIEW OF THE FACT THAT THE TAX EFFECT IN T HE APPEAL IS BELOW PRESCRIBED MONETARY LIMIT AS CONTAINED IN CBD T INSTRUCTION NO.3/2011 DATED 09/02/2011, FURTHER INS TRUCTION NO.5/2014 (F NO.279/MISC./142/2007-IT(PT) DATED 10/07/2014. THE CBDT REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BEFORE VARIOUS AUTHORITIES/COURTS VIDE C BDT CIRCULAR NO.21 OF 2015, DATED 10/12/2015 (F NO.279/MISC./142/2007-IT(PT), WITH RETROSPECTIVE EF FECT AND ADVISED/DIRECTED THE DEPARTMENT NOT TO FILE APPEAL IN THE CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE FOLLOWING MONETARY LIMIT.:- SL. NO. APPEALS IN INCOME TAX MATTERS MONETARY LIMIT (IN RS.) 1. BEFORE ITAT 10,00,000/ - 2. U/S 260 A BEFORE HONBLE HIGH COURT 20,00,000/ - 3. BEFORE HONBLE SUPREME COURT 25,00,000/ - AS PER THE AFORESAID INSTRUCTION/REVISED MONETARY L IMIT, THE DEPARTMENT IS NOT TO FILE APPEAL BEFORE THE TRI BUNAL, WHEREIN THE TAX EFFECT IS LESS THAN RS.10,00,000/-, CONSEQUENTLY, THE APPEAL OF THE REVENUE IS NOT MAIN TAINABLE. THEREFORE, IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. DR. AMITA S KAPADIA ITA NO.4763/MUM/2011 4 FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 16/12/2015 SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER $ % MUMBAI; ) DATED : 16/12/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 1 1 $ 2 ( +, ) / THE CIT, MUMBAI. 4. 1 1 $ 2 / CIT(A)- , MUMBAI 5. 45 / ! , 1 +,' +! 6 , $ % / DR, ITAT, MUMBAI 6. 7' 8% / GUARD FILE. ! / BY ORDER, 04, / //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI