ACIT 22(3), NAVI MUMBAI V. GAUTAM S. NADKARNI, MUMBAI

ITA 5176/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84517 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2014
• Appeal Filed By: Department
• Bench Allotted: G
• Next Hearing Date: 24-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 14-08-2012
• Court: TRIBUNAL
• Department Lawyers: P K BEERLA
• Keywords: Tax effect

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO. 5176/M/2012 (ASSESSMENT YEAR : 200 9 - 20 10 ) ACIT - 22(3), 3 RD FLOOR, TOWER NO.6, VASHI RAILWAY STATION, COMPLEX, VASHI, NAVI MUMBAI. / VS. GAUTAM S. NADKARNI, FLAT NO.402, 4 TH FLOOR, SAI SANMAN CHGS, CHEMBUR, MUMBAI 400 071. ./ PAN : AAZPN 1496 L ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI P.K. BEERLA, DR / RESPONDENT BY : NONE / DATE OF HEARING : 09 .12.2014 / DATE OF PRONOUNCEMENT : 15 .12.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 14.8.2012 IS AGAINST THE ORDER OF THE CIT (A) - 33, MUMBAI DATED 15.5.2012 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRC UMSTANCES OF THE CASE AND IN LAW AND IN FACTS BY ALLOWING THE COST OF IMPROVEMENT IN COMPUTING THE STCG OF RS. 10,58,200/ - , THROUGH EXPENSES WERE MADE IN CASH. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN FACTS AND IN LAW BY ALLOWING THE COST OF IMPROVEMENT THOUGH THE BILLS DOES NOT INDICATE ITEM WISE COST OF IMPROVEMENT DONE IN THE FLAT SOLD BY THE ASSESSEE. 3. THE APPELLANT PRAYS THAT THE ORDER OF CIT (A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. BEFORE US, NONE APPEARED TO REPRESENT THE CASE OF THE ASSESSEE. WITH THE HELP OF THE LD DR, WE PROCEED TO DECIDE THE APPEAL ON MERITS. IT IS NOTICED FROM THE RECORD THAT IN THE ASSESSMENT ASSESSING OFFICER MADE ADDITI ON OF RS. 10,58,200/ - BY HOLDING THAT THE COST OF IMPROVEMENT TO THE FLAT IS NOT CONSIDERED WHILE COMPUTING THE STCG. DURING THE FIRST APPELLATE PROCEEDINGS, CIT (A) DELETED THE SAID ADDITION. AGGRIEVED, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISIN G THE ABOVE MENTIONED GROUNDS. 2 4. IN THE PRESENT CASE, THE TOTAL AMOUNT OF ADDITION IN DISPUTE IS RS. 10,58,200/ - . THE TAX EFFECT IN THE PRESENT CASE IS LESS THAN RS. 4 LAKHS I.E., THE MONETARY LIMIT PRESCRIBED BY THE CBDT AND THEREFORE, THE APPEAL OF TH E REVENUE IS NOT MAINTAINABLE. IT IS A SETTLED PROPOSITION THAT THE NO APPEAL SHOULD BE FILED WHERE TAX EFFECT OF THE DISPUTED ISSUE WAS LESS THAN RS. 4 LAKHS AND THE SAME WAS AFFIRMED BY THE ITAT IN VARIOUS ORDERS AND ITA NO. 934/M/2013 (AY 2009 - 2010), D ATED 21.11.2014 IS ONE OF THE THEM, WHEREIN ONE US (AM) IS A PARTY TO THE SAID TRIBUNALS ORDER. FOR THE SAKE COMPLETENESS OF THIS ORDER, RELEVANT PORTION FROM THE SAID ORDER OF THE TRIBUNAL IS EXTRACTED WHICH READS AS UNDER: 7. WE HAVE HEARD BOTH THE PAR TIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISION OF THE ITAT IN THE CASE OF DCIT VS. M/S. SHINHAN BANK (SUPRA). ON PERUSAL OF PARA 5 OF THE SAID ORDER OF THE TRIBUNAL (SUPRA), WE FIND THE SAME ARE RELEVANT IN THIS REGAR D AND THEREFORE, THE SAME IS REPRODUCED AS UNDER: 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT AFTER THE ORDER OF THE TRIBUNAL DATED 27.6.2007, THE ONLY AMOUNT FOR WHICH PENALTY WAS LEVIABLE WAS THE GUARANTEE COMMISSION OF RS. 7.32 LAKHS. AS PER THE CALCULATION FURNISHED BY THE ASSESSEE AND VERIFIED BY THE DR, THE TAX EFFECT [@ 41.82] IS 3.06 LAKHS. WE FIND THAT AS PER THE INSTRUCTION NO.5, DATED 10.7.2014, ISSUED BY THE CBDT, NO APPEAL SHOULD BE FILED WHERE TAX EFFECT OF THE DISPUTED ISSUE WAS LESS THAN RS. 4 LAKHS. WE FIND THAT IN THE CASE MADHUKAR INAMDAR (185 TAXMAN 101) AND SURESHCHANDRA D KHATOD (31 TAXMANN.COM 74) RESPECTIVELY, HONBLE BOMBAY HIGH COURT AND HONBLE GUJARAT HIGH COURT HAVE HELD THAT CIR CULAR OF THE CBDT WERE APPLICABLE TO THE CASES WHERE APPEALS WERE PENDING AND NOT ONLY TO THE APPEALS TO BE FILED AFTER THE CIRCULAR IS ISSUED. AS THE TAX EFFECT, IN THE CASE UNDER CONSIDERATION IS RS. 3.06 LAKHS I.E., LESS THAN THE MONETARY - LIMIT PRESCRI BED BY THE BOARD, SO WE DECIDE THE EFFECTIVE GROUNDS OF APPEAL AGAINST THE AO. 8. FROM THE ABOVE, IT IS A SETTLED POSITION OF THE ISSUE THAT AS PER THE INSTRUCTION NO.5, DATED 10.7.2014, ISSUED BY THE CBDT, NO APPEAL SHOULD BE FILED WHERE TAX EFFECT OF T HE DISPUTED ISSUE WAS LESS THAN RS. 4 LAKHS. CONSIDERING THE FACT THAT THE TAX EFFECT IN THE INSTANT CASE IS BELOW THE SAID MONETARY LIMIT, THE GROUNDS RAISED BY THE REVENUE SHOULD BE DECIDED AGAINST THE REVENUE. ACCORDINGLY, GROUNDS RAISED BY THE REVENU E ARE DISMISSED. 5. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISSUE, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNC ED IN THE OPEN COURT ON 9 TH DECEMBER, 2014. SD/ - SD/ - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 9 /12/2014 . . ./ OKK , SR. PS 3 / 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