ITO 24(2)(1), MUMBAI V. KIRTI P DESAI, MUMBAI

ITA 6/MUM/2013

• Counselvise Citation: 619914 RSA 2013
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 01-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY PUNGLIA
• Keywords: Additional evidence; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NO. 6/MUM/2013 / ASSESSMENT YEAR 2007-08 THE ITO 24(2)(1), C-13, ROOM NO.606, 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI 400051 / VS. KIRTI P. DESAI, 4 VINOD PREMJI PATEL CHAWL NO.1, ORLEM TANK ROAD, MALAD (W), MUMBAI 400 064 ./ ./ PAN/GIR NO. : AGPPD 6438E ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI SANJAY PUNGLIA RESPONDENT BY : NONE # $ % / DATE OF HEARING : 15/06/2015 # $ % / DATE OF PRONOUNCEMENT : 15/06/2015 / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-34, MUMBAI DATED 17/10/2012 F OR ASSESSMENT YEAR 2007-08. GROUNDS OF APPEAL READ AS UNDER: 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN RESTRICTING THE ADDITION OF RS. 10,14,4191 - MADE BY THE AO TO 8% IF THE TOTAL CASH FOUND DEPOSITED IN UNDISCLOSED BANK ACCO UNT, DESPITE THE ASSESSEE FAILING TO OFFER THE SAME IN HIS RECEIPTS IN BOOKS AND BANK ACCOUNT IN BALANCE SHEET; . / ITA NO. 6/MUM/2013 / ASSESSMENT YEAR 2007-08 2 1.1 ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN ADMITTING ADDITIONAL EVIDENCE IN CONTRAVENTION T O RULE 46A, DESPITE THE ASSESSEE FAILING TO PRODUCE THE DOCUMENTS DURING AS SESSMENT PROCEEDINGS.' 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND MATTER MAY BE DECIDED ACCORDING TO LAW. THE APPELLANT CRAVES L EAVE TO AMEND OR ALTER ANY GROUND OR ADD NEW GROUND WHICH MAY BE NECESSARY. 2. AS IT CAN BE SEEN FROM THE GROUNDS OF APPEAL THAT THE DELETION OF AN AGGREGATE SUM OF RS.10,14,419/- IS AGITATED BY THE REVENUE ON WHICH TAX EFFECT WOULD BE LESS THAN RS.4.00 LACS. VIDE CBDT INSTRUCTION NO.5/2014 F.NO.279/MISC.142/2 007- ITJ(PT)] DATED 10/07/2014, THE TAX EFFECT LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL BY THE REVENUE WAS ENHANCED FROM RS.3.00 L ACS TO RS.4.00 LACS. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR. HOWEVER, ACCORDING TO FOLLOWING DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT, SUCH NOTIFICATIONS ISSUED UNDER SECTION 268A WOULD BE APPLICABLE EVEN TO THE APPEALS FILED BEFORE ISSUE OF THE NOTIFICATION IF THE LIMIT IS ENHANCED : 1. IN THE CASE OF CIT VS. SMT. VIJAYA KAVEKAR (201 3 30 TAXMANN.COM 412) IT WAS HELD AS UNDER: SECTION 260A, READ WITH SECTION 268A, OF THE INCOME -TAX ACT, 1961 - HIGH COURT - APPEALS TO - TAX EFFECT - WHETHER INSTRUCTI ON NO. 3 OF 2011, DATED 9- 2-2011, SPECIFYING MONETARY LIMIT OF RS. 10 LAKHS F OR MAINTAINABILITY OF APPEAL BEFORE HIGH COURT IS APPLICABLE ON PENDING A PPEALS AS WELL - HELD, YES - WHETHER, THEREFORE, WHERE TAX EFFECT IN REVEN UES APPEALS WAS LESS THAN RS. 10 LAKHS WHICH WAS FILED EVEN PRIOR TO ISS UE OF INSTRUCTION DATED 9-2-2011, SAME WAS TO BE DISMISSED BEING NON-MAINTA INABLE - HELD, YES [IN FAVOUR OF ASSESSEE ] 2. IN THE CASE OF CIT VS. MADHUKAR IMANDAR (2009 1 85 TAXMAN 101] IT WAS HELD AS UNDER: SECTION 268A, READ WITH SECTION 119, OF THE INCOME- TAX ACT, 1961 - APPEAL OR APPLICATION FOR REFERENCE - FILING OF, BY INCOME -TAX AUTHORITY - WHETHER CIRCULAR/INCOME-TAX INSTRUCTION NO. 5 OF 2008, DATE D 15-5-2008 ISSUED BY CBDT DIRECTING INCOME-TAX AUTHORITIES NOT TO FILE A PPEALS IF TAX EFFECT IS LESS THAN RS. 4 LAKHS WOULD BE APPLICABLE TO CASES PENDI NG BEFORE HIGH COURT AS ON 15-5-2008 EITHER FOR ADMISSION OR FOR FINAL D ISPOSAL, EVEN THOUGH . / ITA NO. 6/MUM/2013 / ASSESSMENT YEAR 2007-08 3 SAID APPEALS AND/OR PETITIONS WERE FILED BEFORE HIG H COURT PRIOR TO 15-5- 2008 - HELD, YES 5. IN THIS VIEW OF THE SITUATION, WE DISMISS THE APPEAL FILED BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT AS PER AFOREMENTIONED INSTRUCTION ISSUED BY CBDT. ORDER PRONOUNCED IN THE OPEN COURT ON 15/06/2015 # + , - 15/06/2015 # SD/- SD/- ( . . / B.R.BASKARAN ) . . /I.P.BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; , DATED 15/06/2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. /$ ( ) / THE CIT(A)- 4. /$ / CIT 5. 01 $23 , % 23 , / DR, ITAT, MUMBAI 6. 4 / GUARD FILE. / BY ORDER, 0$ $ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS