ACIT CEN CIR 7, MUMBAI V. SHREE SWAMI SAMARTH DEVELOPERS, MUMBAI

ITA 5964/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1133 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 24-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS MUNDHE LD
• Assessee Lawyers: RUTURAJ GUJAR LD
• Keywords: Capital asset; Tax effect
• Section: 143(3)

Judgement Text

ITA NO.5964/M/2014 SHREE SWAMI SAMARTHA DEVELOPERS ASSESSMENT YEAR : 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.5964/MUM/2014 ( / ASSESSMENT YEAR: 2010-11) ASSISTANT COMMISSIONER OF INCOME CENTRAL CIRCLE-7 ROOM NO. 805 8 TH FLOOR OLD CGO ANNEXE M.K.ROAD MUMBAI 400 020 / VS. SHREE SWAMI SAMARTHA DEVELOPERS 19B SUYASH DADAR (W) MUMBAI- 400 028 !' ./ ./PAN/GIR NO. AABFS-7754-E ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) ASSESSEE BY : SHRI RUTURAJ GUJAR, LD AR REVENUE BY : SHRI VISHWAS MUNDHE, LD. DR / DATE OF HEARING : 25/04/2017 / DATE OF PRONOUNCEMENT : 25/04/2017 ITA NO.5964/M/2014 SHREE SWAMI SAMARTHA DEVELOPERS ASSESSMENT YEAR : 2010-11 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT YE AR [AY] 2010-11 ASSAILS THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-36 , [CIT(A)], MUMBAI DATED 30/07/2014 QUA CERTAIN RELIEF PROVIDED TO THE ASSESSEE. 2. BRIEFLY STATED, THE ASSESSEE, BEING RESIDENT FIR M, WAS SUBJECTED TO AN ASSESSMENT U/S 143(3) VIDE ASSESSING OFFICER [AO] ORDER DATED 22/03/2013 WHEREIN THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED AT RS.5,20,40,580/- AFTER CERTAIN ADJUSTMENTS/DISALLOWANCES AS AGAINST RETURNED INCOM E OF RS.4,60,39,780/- FILED BY THE ASSESSEE ON 27/09/2010. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND LETTING OUT OF PROPERTIES . THE ASSESSEE EARNED CERTAIN RENTAL INCOME FROM AN ENTITY NAMELY RELIANCE WEBSTORE PRIVATE LIMITED FOR RS.44,22,372/-, WHICH WAS TREATED AS INCOME FROM OTHER SOURCES. FURTHER, THE ASSESSEE SUFFERED ANOTHER ADDITION OF RS.12,30,323/- PAID TOWARDS CERTAIN SOCIETY MAINTENANCE CHARGES AS THE SAME, IN THE OPINION OF THE LD. AO, WERE CLAIMED TWICE BY THE ASSESSEE. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) SUCCESSFULLY VIDE ORDER DATED 30/ 07/2014 WHO DELETED BOTH THE ADDITIONS AFTER CONSIDERING THE FACTUAL MATRIX OF T HE CASE AND VARIOUS SUBMISSIONS MADE BY THE ASSESSEE. FURTHER, LD. CIT(A) DIRECTED THE AO TO REFER THE MATTER OF VALUATION OF CERTAIN CAPITAL ASSET TO THE VALUATION OFFICER. AGG RIEVED BY THE RELIEF PROVIDED BY LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 3. AT THE OUTSET, IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE APPEAL, BEING REVENUES APPEAL, IS COVERED BY THE LOW TAX EFFECT CIRCULAR ISS UED BY THE CBDT. AS PER CALCULATIONS, IT IS SEEN THAT THE TAX EFFECT OF AMO UNT IN DISPUTE IN THE APPEAL IS BELOW RS.10 LACS AND HENCE THE SAME IS COVERED BY LATEST C BDT CIRCULAR NUMBER 21 OF 2015 DATED 10/12/2015. AS PER THIS CIRCULAR, NEW GUIDELI NES OF MONETARY LIMIT FOR FILING OF APPEALS BY THE DEPARTMENT HAS BEEN ISSUED, WHEREBY THE TAX EFFECT FOR FILING OF APPEAL BEFORE THE ITAT HAS BEEN PRESCRIBED AT MINIMUM OF RS . 10 LAKHS. IN THE SAID CIRCULAR, IT ITA NO.5964/M/2014 SHREE SWAMI SAMARTHA DEVELOPERS ASSESSMENT YEAR : 2010-11 3 HAS BEEN SPECIFICALLY CLARIFIED THAT THE SAID INSTR UCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS. THE LD. DR FAIRLY CONCEDED THE POSIT ION AND COULD NOT POINT OUT ANY EXCEPTIONS AS GIVEN IN THE CIRCULAR. ACCORDINGLY, T HE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND THEREFORE, DISMISSED IN LIMINE . 4. IN NUTSHELL, THE APPEAL OF THE REVENUE STANDS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH APRIL, 2017. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 25.04.2017 SR.PS:- THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. %- , - , / DR, ITAT, MUMBAI 6. ./ / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI