ITO 21(1)(3), MUMBAI V. MAHRUKH M. OOMRIGAR, MUMBAI

ITA 5915/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3669 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 04-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G N MAKWANA
• Assessee Lawyers: NEHA PRANJPE
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO.5915/MUM/2013 (ASSESSMENT YEAR:2006-07) I.T.O.-21(1)(3), MUMBAI -400 049 APPELLANT VS. SMT. MAHARUKH M. OOMRIGAR 701, FORESHORE APARTMENT, JUHU TARA ROAD, JUHU, MUMBAI 400 049 RESPONDENT & C.O. NO.34/MUM/2015 (ASSESSMENT YEAR:2006-07) SMT. MAHARUKH M. OOMRIGAR 701, FORESHORE APARTMENT, JUHU TARA ROAD, JUHU, MUMBAI 400 049 APPELLANT VS. I.T.O.-21(1)(3), MUMBAI -400 049 RESPONDENT PAN: AAAPO2718B ITA NOS.5915/MUM/13 & C.O. NO.34/MUM/15 A.Y. 06-07 [ITO VS. SMT. MAHARUKH M. OOMRIGAR] PAGE 2 / BY REVENUE : SHRI G. N. MAKWANA, D.R. / BY ASSESSEE : SHRI K. GOPAL & MS. NEHA PRANJPE, A.R. /DATE OF HEARING : 09.08.2016 /DATE OF PRONOUNCEMENT : 12.08.2016 ORDER PER BENCH ONE APPEAL IS FILED BY REVENUE AND THE CROSS OBJECT ION HAS BEEN FILED BY ASSESSEE ARE ARISING FROM THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)-32, MUMBAI, DA TED 29.07.2013 FOR A.Y. 2006-07. 2. IN ITA NO.5915/MUM/2013, THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD CIT(A) ERRED IN DELETING PENALTY ON THE GROUND OF ADMISSION OF APPEAL BEFORE THE HONBLE HI GH COURT ON SUBSTANTIAL QUESTION OF LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT(A) ERRED IN DELETING PENALTY IGN ORING THAT THE APPEAL OF THE ASSESSEE BEFORE THE HONBLE HIGH COURT IS IN ADMISSION STAGED AND IS PENDING FOR FINALIZATION. 2. BEFORE US, AT THE OUTSET, LD. AUTHORIZED REPRESE NTATIVE SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NE EDS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF T HE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12.2015. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT TH E TAX EFFECT ITA NOS.5915/MUM/13 & C.O. NO.34/MUM/15 A.Y. 06-07 [ITO VS. SMT. MAHARUKH M. OOMRIGAR] PAGE 3 IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. 2.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUND OF APPEA L RAISED BY THE REVENUE, WE PRIMA-FACIE FIND THAT THE TAX EFFEC T IN THIS APPEAL IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10.12.20 15 (CIRCULAR NO. 21 OF 2015), NO DEPARTMENT APPEALS AR E TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS. 10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PENDING APPEALS. IN THE PRES ENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT ON THE ADDITION S WHICH ARE IN DISPUTE, THE TAX EFFECT IS LESS THAN RS. 10 LACS AND IN THE ABSENCE OF ANY MATERIAL ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXEMPTIONS SPECIFIED IN CLAUSE (8) OF THE AFORESAID CBDT CIRCULAR, WE ARE OF THE VIEW THAT THE MONETARY LIMI T PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESAID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, IN CASE THERE IS ANY ERROR IN THE COMPUTATION OF THE TAX EFFECT INVOLVED OR IF FOR AN Y REASON, THE AFORESAID CBDT CIRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN TO THE REVENUE TO SEEK REVIVAL OF THE APPEAL. IN SUCH CIRCUMSTANCES, WE DISMISS THE APPEAL OF REVENUE WIT HOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. ITA NOS.5915/MUM/13 & C.O. NO.34/MUM/15 A.Y. 06-07 [ITO VS. SMT. MAHARUKH M. OOMRIGAR] PAGE 4 3. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. 4. WHEN REVENUES APPEAL IS DISMISSED, CROSS OBJEC TION ARISING OUT OF SAME, BECOME INFRUCTUOUS. SO, SAME IS DISMISSED. 5. IN THE RESULT, APPEAL FILED BY REVENUE AND CROSS OBJECTION FILED BY ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 12 TH DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 12/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. BY ORDER / , / , ,