DEPUTY COMMISSIONER OF INCOME TAX - CENTRAL CIRCLE 6(2), MUMBAI V. SAMIRA REALITY PROJECTS PRIVATE LIMITED, MUMBAI

ITA 486/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 8894 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 22-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; TDS
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 486/MUM/2018 ASSESSMENT Y EAR: 2011 - 2012 THE DCIT, CENT. CIR. - 6(2), R. NO. 1903, 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POIN T, MUMBAI - 400021 VS. M /S SAMIRA REALITY PROJECTS PVT. LTD., MARATHON FUTURE, B TOWER, 902 - 903, 9 TH FLOOR, LOWER PAREL, MUMBAI - 400013 PAN: AALCS6413P (APPELLANT) (RESPONDENT) REVENUE BY : SHRI AJAY KUMAR (CIT DR ) ASSESSEE BY : SHRI GAURAV KAB RA ( A R ) DATE OF HEARING: 19/12 /201 9 DATE OF PRONOUNCEMENT: 20 / 12 /201 9 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 31.10.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 54 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2011 - 12 , WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) OF THE INCOME TAX ACT, 1 961 (FOR SHORT THE ACT). 2 . T HE REVENUE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THE FOLLOWING GROUNDS : - 1. WHETHER ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (APPEALS) ERRED IN RESTRICTING THE ADDITION MADE O F RS. 43,47,425/ - U/S 69 ON ACCOUNT OF ON - MONEY AMOUNTING TO RS. 21,73,712/ - ? 2. WHETHER ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (APPEALS) ERRED IN DELETING THE ADDITION OF RS. 65,520/ - ON ACCOUNT OF PENAL INTEREST ON SHORT DEDUCTI ON/NO DEDUCTION OF TDS? 2 ITA NO. 486 / MUM/2018 ASSESSMENT YEAR: 2011 - 1 2 3. WHETHER ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (APPEALS) ERRED IN ALLOWING THE ASSESSEES CLAIM OF SET - OFF OF BROUGHT FORWARD LOSSES OF RS. 1,16,74,748/ - ? 4. WHETHER ON THE BASIS OF FACTS AND CIRCUMSTANCE S OF THE CASE THE LEARNED CIT (APPEALS) WHILE DELETING THE ADDITIONS, ERRED IN FOLLOWING THE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF ALCARGO GLOBAL LOGISTICS LTD., IGNORING THE FACT THAT DEPARTMENT IS BEFORE HONBLE SUPREME COURT ON THE ISSUE? 3 . AT THE OUTSET, THE LD. COUNSEL FOR THE RESPONDENT/ASSESSEE POINTED OUT THAT THE TAX EFFECT OF THE RELIEF GRA NTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BELOW RS. 5 0 LACS AND AS PER C IRCULAR NO.17 OF 2019 DATED 08.08.2019 ISSUED BY THE CENTR AL BOARD OF DIRECT TAXES (CBDT) , DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA , THE CBDT HAS REVISED THE MONETARY LIMIT FOR FILING APPEAL S BEFORE THE ITAT FROM THE EXISTING LIMIT OF RS. 20 LACS TO RS. 50 LACS . IN THE LIGHT OF THE AFORESAI D FACTS, THE LD. COUNSEL SUBMITTED THAT THIS APPEAL IS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. T HE LD. COUNSEL FURNISHED CALCULATION SHEET, AS PER WHICH, THE TAX EFFECT IN TH IS CASE IS RS. 42,99,420/ - . 4 . THE LD. DEPARTMENTAL REPRESENTATIVE (DR) ADM ITTED THAT TH IS APPEAL IS NOT MAINTAINABLE IN LIGHT OF THE AFORESAID C IRCULAR ISSUED BY THE CBDT , HOWEVER , SUBMITTED THAT THE DEPARTMENT MAY BE GIVEN LIBERTY TO FILE MISCELLANEOUS APPLICATION IN CASE IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTI ONS PROVIDED IN THE C IRCULAR OR OTHERWISE MAINTAINABLE . 5 . WE HAVE GONE THROUGH THE IMPUGNED ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE GROUNDS OF APPEALS. AS POINTED OUT BY THE LD. COUNSEL, THE TAX EFFEC T IN THIS APPEAL IS LESS THAN RS. 5 0 LACS. ACCORDINGLY, W E DISMISS THE AFORESAID APPEAL FILED BY THE REVENUE AS NOT MAINTAINABLE/WITHDRAWN . HOWEVER, IN CASE , IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE CIRCULAR OR OTHERWISE MAINTAINABLE, THEN 3 ITA NO. 486 / MUM/2018 ASSESSMENT YEAR: 2011 - 1 2 THE RE VENUE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RECALLING THE ORDER OF THE TRIBUNAL FOR DECIDING THE APPEAL AFRESH ON MERITS. . IN THE RESULT, APPEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2011 - 2012 IS DISMISSED. ORDER PRONOUNCED I N THE OPEN COURT ON 20 TH DECEMBER , 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 20 / 12 / 201 9 ALINDRA, PS / 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