ITO 8(2)(4), MUMBAI V. YATINDRA SHANKAR KARNIK, MUMBAI

ITA 5770/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0930 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 10-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 15-09-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S A MUKHADAM
• Assessee Lawyers: P N DEVADASAN
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI RAJENDRA SINGH (AM) AND SMT. ASHA VIJA YARAGHAVAN (JM) ITA NO. 5770/MUM/2008 ASSESSMENT YEAR-2005-06 THE ITO 8(2)(4), MUMBAI VS. YATINDRA SHANKAR KARNIK, A/404, MEERA APT, JUHU VERSOVA, NEW LINK ROAD, SEVEN BUNGALOWS, VERSOVA, MUMBAI-400 061 PAN-AAQPK7413H (APPELLANT) (RESPONDENT) A PPELLANT BY: SHRI S.A. MUKHADAM RESPONDENT BY: SHRI P.N. DEVADASAN O R D E R PER SMT. ASHA VIJAYARAGHAVAN (JM) THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 8.7.2008 IN RELATION TO THE ASSESSMENT YEAR 2005-06. 2. THE TAX EFFECT INVOLVED IN THIS APPEAL FILED BY THE REVENUE IS BELOW RS.2 LACS AS PER THE WORKING FILED BY THE LD. AR, W HICH HAS NOT BEEN DISPUTED BY THE LD. DR. THE CBDT HAS ISSUED INSTRUC TIONS FROM TIME TO TIME ADVISING THE FIELD FORMATIONS NOT TO FILE APPE ALS BEFORE THE APPELLATE TRIBUNAL OR THE HIGH COURTS, IF THE REVENUE EFFECT INVOLVED IN THOSE MATTERS ARE LESS THAN THE LIMIT PRESCRIBED IN THE I NSTRUCTIONS. THE INSTRUCTION NO.1903 ISSUED ON 28.10.1992, HAD PRESC RIBED SUCH LIMIT AT RS.25,000. THEREAFTER IN 1979, THE SAID LIMIT WAS E NHANCED TO RS.1 LAC THROUGH THE INSTRUCTIONS DATED 27.3.2000. AGAIN IN 2005, THE CBDT REVISED THE MINIMUM TO RS.2 LACS THROUGH ITS INSTR UCTION NO.2705 ISSUED ON 24.10.2005. WHEREVER THE REVENUE EFFECT I NVOLVED IN AN APPEAL YATINDRA SHANKAR KARNIK 2 IS LESS THAN RS.2 LAC PER ASSESSMENT YEAR, APPEALS ARE NOT TO BE FILED BEFORE THE APPELLATE TRIBUNAL. 3. THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CAMCO COLOUR CO. [254 ITR 565] HAS HELD THAT THE ABOVE INSTRUCTIONS ARE BINDING O N THE DEPARTMENT AND THE APPEALS WHERE TAX EFFECT IS LESS THAN THE PRESCRIBED LIMIT, SUCH APPEALS ARE NOT MAINTAINABLE BEFORE THE TRIBUNAL. 4. IN A SUBSEQUENT DECISION THE BOMBAY HIGH COURT I N THE CASE OF CIT VS. PITHWA ENGG. WORKS [276 ITR 519] FURTHER HELD THAT THE LATEST CIRCULAR ON THE ISSUE WILL BE APPLICABLE TO ALL THE PENDING APPEALS INCLUDING THOSE APPEALS IN WHICH THE ASSESSMENT YEARS ARE THE ASSES SMENT YEARS PRIOR TO THE LATEST CIRCULAR. THIS RULE OF RETROSPECTIVITY W AS AGAIN UPHELD BY THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ZOEB Y.TOPIWALA [284 ITR 379], WHEREIN THE COURT HAS HELD THAT EVEN THE PENDING AP PEALS HAVE TO BE CONSIDERED IN THE LIGHT OF THE THRESHOLD LIMIT OF T HE TAX EFFECT PRESCRIBED IN THE LATEST CIRCULAR. THE MADRAS HIGH COURT HAS T AKEN A SIMILAR VIEW IN THE CASE OF CWT VS. S.ANNAMALAI [258 ITR 675] . 5. IN THESE CIRCUMSTANCES, WE FIND THAT THE APPEA L FILED BY THE REVENUE BEFORE THE TRIBUNAL IS NOT MAINTAINABLE. THEREFORE, THE SAME IS DISMISSED IN LIMINE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF JULY, 2010 SD/- SD/- (RAJENDRA SINGH) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30 TH JULY, 2010 RJ YATINDRA SHANKAR KARNIK 3 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR G BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI YATINDRA SHANKAR KARNIK 4 DATE INITIALS 1 DRAFT DICTATED ON: 26.7.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 27 . 7 .2010 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______