ACIT CIR 21(1), MUMBAI V. REKHA R. KULKARNI, MUMBAI

ITA 5016/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4575 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2016
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 18-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-08-2012
• Court: TRIBUNAL
• Department Lawyers: R M MADHAVI
• Assessee Lawyers: AARTI SATHE KALPESH TURALKAR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, JUDICIAL MEMBER I.T.A. NO.5016/M/2012 (ASSESSMENT YEAR: 2009 - 2010 ) ACIT CIRCLE 21(1), 6 TH FLOOR, R.NO. 601, PRATYAKSHAKAR BHAVAN, BANDRA (E), MUMBAI 400 051. / VS. REKHA R. KULKARNI, PRABHAT APTS, HANUMAN ROAD, VILE PARLE (W), MUMBAI 400 049. ./ PAN : AEHPK7214B ( / APPELLANT) .. ( / RESPONDENT ) C.O. NO.186 /M/2013 (ARISING OUT OF I.T.A. NO.5016/M/2012 (ASSESSMENT YEAR: 2009 - 2010 ) REKHA R. KULKARNI, PRABHAT APTS, HANUMAN ROAD, VILE PARLE (W), MUMBAI 400 049. / VS. ACIT CIRCLE 21(1), 6 TH FLOOR, R.NO. 601, PRATYAKSHAKAR BHAVAN, BANDRA (E), MUMBAI 400 051. ./ PAN : AEHPK7214B ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI AARTI SATHE / KALPESH TURALKAR / REVENUE BY : MS. R.M. MADHAVI, DR / DATE OF HEARING : 14.01.2016 / DATE OF PRONOUNCEMENT : 14.01.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THE CAPTIONED APPEAL IS FILED BY THE REVENUE FOR THE AY 2009 - 2010 AND THE CROSS OBJECTION NO.186/M/2013 IS FILED BY THE ASSESSEE. SINCE, THE ISSUES RAISED IN THESE APPEALS ARE INTER - CONNECTED AND THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD TOGETHER AND DISPOSED OF IN THIS CONSOLIDAT ED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS OF THIS ORDER. 2 2 . AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE GROUNDS RAISED BY THE REVENUE AND MENTIONED THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS. 10 LAKHS AND THEREFORE, THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. IN SUPPORT OF HIS AR GUMENT, HE BROUGHT OUR ATTENTION TO THE RECENTLY ISSUED CBDT CIRCULAR NO.21/2015, DATED 10.12.2015 AND SUBMITTED THAT THE APPEALS FILED BY THE REVENUE WITH A TAX EFFECT OF RS. 10 LAKHS AND BELOW ARE TO BE EITHER DISMISSED BY THE TRIBUNAL AS NOT MAINTAINAB LE OR NOT PRESSED BY THE REVENUE. REFERRING TO THE ABOVE MENTIONED BOARD CIRCULAR NO.21/2015, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO PARA 10 AND SUBMITTED THAT THE SAID MONETARY LIMITATION OF RS. 10 LAKHS APPLIES TO ALL THE APPEALS FILED BY THE REVENUE RETROSPECTIVELY. CONSIDERING THE SIGNIFICANCE OF THE SAID PARA 10 OF THE CBDT CIRCULAR (SUPRA) IS EXTRACTED AS UNDER: - 10. THIS I NSTRUCTION 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 WITHDRAWN / 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. 3 . CONSIDERING THE ABOVE, THE APPEAL FILED BY THE REVENUE, WHEREIN THE TAX EFFECT IS BELOW THE ABOVE STATED TAX LIMIT OF RS. 10 LAKHS, IS DISMISSED AS NOT MAINTAINABLE. 4 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. C.O. NO.186/M/2013 (ARISING OUT OF I.T.A. NO.5016/M/2012 (ASSESSMENT YEAR: 2009 - 2010) 5 . THIS CROSS OBJECTION FILED BY THE ASSESSEE 20.8.2013 AND IT AROSE FROM THE APPEAL I.T.A. NO.5016/M/2012 FOR THE AY 2009 - 2010 . WHILE ADJUDICATING THE REVENUES APPEAL FOR THE AY 2009 - 2 010 , WE HAVE DISMISSED THE SAME ON THE REASON OF LOW TAX EFFECT. THEREFORE, CONSIDERING OUR DECISION GIVEN ON THE LEAD APPEAL OF THE REVENUE, THE CROSS OBJECTION RAISED BY THE ASSESSEE DEMANDS NO SPECIFIC ADJUDICATION SINCE THE APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE . WE FIND THAT THE CASE LAWS CITED BY THE LD COUNSEL FOR THE ASSESSEE IE THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. NEW INDIA ASSURANCE CO. LTD [141 ITR 367] AND THE JUDGMENT OF THE HONBLE GUJARAT HI GH COURT IN THE CASE OF 3 CIT VS. PURBANCHAL PARIBAHAN GOSTHI [234 ITR 663] ARE DISTINGUISHABLE ON FACTS. IN THESE CASES, THE APPEALS BY THE REVENUE ARE NOT DISMISSED AS NOT MAINTAINABLE ON THE GROUND OF TAX EFFECT BASED ON THE CBDT CIRCULAR (SUPRA). OTHER WISE, AS PER THE LD COUNSEL , THERE IS NO PRECEDENT IN EXISTENCE WHICH IS APPLICABLE TO THE FACTS OF THE PRESENT CASE AGAINST THE DISMISSAL OF THE CO AS NON - MAI N TAINABLE. CONSIDERING THE SAME, THE CROSS OBJECTION RAISED BY THE ASSESSEE IS DISMISSED AS NOT MAINTAINABLE . 6 . IN THE RESULT, CROSS OBJECTION RAISED BY THE ASSESSEE IS DISMISSED . 7 . CONCLUSIVELY, TWO REVENUES APPEALS AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2016. S D / - S D / - ( SANDEEP GOSAIN ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 4.1.2016 . . ./ OKK , SR. 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI