DCIT 10(1), MUMBAI V. ALPHA X-RAY TECHNOLOGIES (I) P.LTD, MUMBAI

ITA 5091/MUM/2013

• Counselvise Citation: 509119914 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEEVAN LAL LAVIDIYA
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER . / ITA NO.5091/MUM/2013 / ASSESSMENT YEAR 2009-10 THE DCIT 10(1), ROOM NO.455,4 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 / VS. M/S. ALPHA X-RAY TECHNOLOGIES (I) PVT. LTD., 24, GODWILL PREMISES, 178, SWASTIK ESTATE, CST ROAD, KALINA, MUMBAI 400098 ./ ./ PAN/GIR NO. : AAACA 3823E ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI JEEVANLAL LAVIDIYA RESPONDENT BY NONE ' # $ / DATE OF HEARING : 10/06/2015 ' # $ / DATE OF PRONOUNCEMENT : 10/06/2015 / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS D IRECTED AGAINST THE ORDER PASSED LD. CIT(A)-21, MUMBAI FOR THE ASSESSME NT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 8,45,000/- RE PRESENTING COMMISSION EXPENSES IGNORING THE FACT THAT COMMISSION PAYMENTS PERTAIN TO A.Y. 2008- 09 AND IT WAS HELD IN ASSESSMENT ORDER FOR A.,Y. 2008- 09 THAT THE ASSESSEE WOULD NOT BE ENTITLED TO CLAIM DEDUCTION IN ANY SUBSEQUEN T YEAR.' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) ERRED IN DELETING ADDITION OF RS. 2,00,000/- REPRES ENTING THE PRIOR PERIOD EXPENDITURE WITHOUT APPRECIATING THE FACT THE SALE OF EQUIPMENT WAS MADE IN . / ITA NO.5091/MUM/2013 / ASSESSMENT YEAR 2009-10 2 EARLIER YEAR AND EXPENDITURE THEREOF SHOULD HAVE BE EN ALLOWED IN THAT YEAR AS PER ESTABLISHED PRINCIPLES OF ACCOUNTANCY' 2. IT IS SEEN FROM THE GROUNDS OF APPEAL THAT THE DELETION OF ADDITION CONTESTED BY THE REVENUE IS ONLY A SUM OF RS.10,45, 000/-, ON WHICH TAX EFFECT IS LESS THAN RS.4.00 LACS. VIDE CBDT INSTRUCTION NO .5/2014 F.NO.279/MISC.142/2007-ITJ(PT)] DATED 10/07/2014, THE TAX EFFECT LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL BY THE REVENU E WAS ENHANCED FROM RS.3.00 LACS TO RS.4.00 LACS. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR. HOWEVER, ACCORDING TO FOLLOWING DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT, SUCH NOTIFICATIONS ISSUED UNDER SECTION 268A WOULD BE APPLICABLE EVEN TO THE APPEALS FILED BEFORE ISSUE OF THE NOTIFICATION IF THE LIMIT IS ENHANCED : 1. IN THE CASE OF CIT VS. SMT. VIJAYA KAVEKAR (201 3 30 TAXMANN.COM 412) IT WAS HELD AS UNDER: SECTION 260A, READ WITH SECTION 268A, OF THE INCOME -TAX ACT, 1961 - HIGH COURT - APPEALS TO - TAX EFFECT - WHETHER INSTRUCTI ON NO. 3 OF 2011, DATED 9- 2-2011, SPECIFYING MONETARY LIMIT OF RS. 10 LAKHS F OR MAINTAINABILITY OF APPEAL BEFORE HIGH COURT IS APPLICABLE ON PENDING A PPEALS AS WELL - HELD, YES - WHETHER, THEREFORE, WHERE TAX EFFECT IN REVEN UES APPEALS WAS LESS THAN RS. 10 LAKHS WHICH WAS FILED EVEN PRIOR TO ISS UE OF INSTRUCTION DATED 9-2-2011, SAME WAS TO BE DISMISSED BEING NON-MAINTA INABLE - HELD, YES [IN FAVOUR OF ASSESSEE ] 2. IN THE CASE OF CIT VS. MADHUKAR IMANDAR (2009 1 85 TAXMAN 101] IT WAS HELD AS UNDER: SECTION 268A, READ WITH SECTION 119, OF THE INCOME- TAX ACT, 1961 - APPEAL OR APPLICATION FOR REFERENCE - FILING OF, BY INCOME -TAX AUTHORITY - WHETHER CIRCULAR/INCOME-TAX INSTRUCTION NO. 5 OF 2008, DATE D 15-5-2008 ISSUED BY CBDT DIRECTING INCOME-TAX AUTHORITIES NOT TO FILE A PPEALS IF TAX EFFECT IS LESS THAN RS. 4 LAKHS WOULD BE APPLICABLE TO CASES PENDI NG BEFORE HIGH COURT AS ON 15-5-2008 EITHER FOR ADMISSION OR FOR FINAL D ISPOSAL, EVEN THOUGH SAID APPEALS AND/OR PETITIONS WERE FILED BEFORE HIG H COURT PRIOR TO 15-5- 2008 - HELD, YES . / ITA NO.5091/MUM/2013 / ASSESSMENT YEAR 2009-10 3 5. IN THIS VIEW OF THE SITUATION, WE DISMISS THE APPEAL FILED BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT AS PER AFOREMENTIONED INSTRUCTION ISSUED BY CBDT. ORDER PRONOUNCED IN THE OPEN COURT ON 10/06/2015 ' )* + , 10/06/2015 ' SD/- SD /- ( . / D.KARUNAKARA RAO ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ) MUMBAI; + DATED 10/06/2015 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. /# ( ) / THE CIT(A)- 4. /# / CIT 5. 01 #23 , $ 23 , ) / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, 0# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ) / ITAT, MUMBAI . . ./ VM , SR. PS