ITO (TDS) 2(5), MUMBAI V. PROFOTO SERVICES P. LTD, MUMBAI

ITA 580/MUM/2010

• Counselvise Citation: 58019914 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 22-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Keywords: Tax effect

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI R.S.PADVEKAR (JM) AND SHRI RAJENDRA SI NGH(AM) ITA NO.580/M/2010 ASSESSMENT YEAR 2006-07 ITA NO.581/M/2010 ASSESSMENT YEAR 2007-08 THE ITO (TDS) 2(5) M/S. PROFOTO SERVICES PVT. LT D. ROOM NO.704, SMT. K.G.MITTAL 204-D ELEPHISTONE HOU SE, 17 AYURVEDIC HOSPITAL BUILDING MARZBAN ROAD, FORT CHARNI ROAD, MUMBAI 400 002. MUMBAI 400 001. PAN : AABCP 9129 P APPELLANT RESPONDENT REVENUE BY : SHRI SURENDRA KUMAR ASSESSEE BY : NONE O R D E R PER RAJENDRA SINGH (AM) THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST DIFFERENT ORDERS BOTH DATED 5.11.2009 OF CIT(A) FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08. THE ONLY DISPUTE RAISED IN THESE APPEALS IS REGARDI NG LEVY OF PENALTY UNDER SECTION 272A(2)(C) FOR NOT FILING THE TDS RETURNS I N TIME. AS IDENTICAL DISPUTE HAS BEEN RAISED IN BOTH THE APPEALS, THESE APPEALS ARE BEING DISPOSED OFF BY A SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIEN CE. 2 2. AT THE TIME OF HEARING OF APPEAL NO ONE APPEARED ON BEHALF OF THE ASSESSEE. WE THEREFORE PROCEED TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LEARNED D R. 3. WE HAVE HEARD THE LEARNED DR, PERUSED THE RECORD S AND CONSIDERED THE MATTER CAREFULLY. WE FIND THAT TAX INVOLVED IN THES E APPEALS IS LESS THAN RS.5 LACS AND AS PER THE LATEST INSTRUCTION NO.3/2011 DA TED 9.2.11 REVENUE AUTHORITIES ARE NOT PERMITTED TO PURSUE APPEAL BEFO RE THE TRIBUNAL IN CASES HAVING TAX EFFECT OF LESS THAN RS. 5 LACS. THE LEAR NED DR SUBMITTED THAT LIMIT OF RS.5 LACS WILL APPLY ONLY IN RESPECT OF APPEALS FIL ED AFTER THE DATE OF ISSUE OF THE SAID INSTRUCTION. WE ARE HOWEVER UNABLE TO ACCEPT T HE ARGUMENT ADVANCED BY THE LEARNED DR. WE FIND THAT THIS ISSUE HAS ALREADY BEEN CONSIDERED BY THE HONBLE HIGH COURT OF DELHI IN CASE OF CIT VS RACE CLUB LTD. IN WHICH THE HONBLE HIGH COURT FOLLOWING THE JUDGMENT OF HONBL E HIGH COURT OF MUMBAI IN CASE OF PITHWA ENGINEERING (276 ITR 519) AND THE JU DGMENT OF HONBLE HIGH COURT OF MADHYA PRADESH IN CASE OF ASHOK PATEL (317 ITR 386) HAVE HELD THAT THE INSTRUCTION WOULD APPLY TO PENDING APPEALS ALSO . WE THEREFORE HOLD THAT THE PRESENT APPEALS WILL BE COVERED BY THE INSTRUCTION NO.3 OF 2011 AND THE REVENUE AUTHORITIES ARE NOT PERMITTED TO FILE APPEA LS IN WHICH TAX EFFECT IS LESS THAN RS. 5 LACS. THE TAX EFFECT FOR A.Y.2006-07, RS .2,59,656/- AND FOR A.Y.2007-08, RS.1,21,200/-. THE HONBLE HIGH COURT OF MUMBAI IN CASE OF CAMCO COLOUR CO (254 ITR 565) HAVE HELD THAT APPEAL FILED BY THE REVENUE WITH TAX EFFECT LESS THAN THE LIMIT PRESCRIBED BY THE CB DT FOR FILING APPEAL BEFORE THE TRIBUNAL ARE NOT MAINTAINABLE. WE ACCORDINGLY DISMI SS THESE APPEALS AS NON MAINTAINABLE. 3 4. IN THE RESULT BOTH THE APPEALS ARE DISMISSED. 5. ORDER WAS PRONOUNCED IN THE OPEN COURT 27.04.20 11. SD/- SD/- ( R.S. PADVEKAR ) (RAJEND RA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 27.04.2011 AT :MUMBAI COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), MUMBAI CONCERNED 4. THE CIT, MUMBAI CITY CONCERNED 5. THE DR C BENCH, ITAT, MUMBAI // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ALK