D.C.I.T. 39, MUMBAI V. RAMESH D. SHAH, MUMBAI

ITA 6000/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88083 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-01-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 01-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIJAY PAL RA O, JM ./ I.T.A. NOS. 6000 TO 6002/MUM/2012 ( / ASSESSMENT YEARS: 2004-05 TO 2006-07) ASST. CIT, RANGE-8(1), ROOM NO. 260A, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 / VS. RAMESH D. SHAH 10, ATT. SHOPPING ENT. PVT. LTD., D. N. NAGAR, OPP. APANA BAZAR, ANDHERI (W), MUMBAI-400 053 ./! ./PAN/GIR NO. AACPS 9581 N ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ' % & / APPELLANT BY : SHRI LOVE KUMAR #$ ' % & / RESPONDENT BY : SHRI VIJAY MEHTA ' ( ) % * + / DATE OF HEARING : 29.01.2015 DATE OF ORDER : 30.01.2015 , / O R D E R PER BENCH: THIS IS A SET OF THREE APPEALS BY THE REVENUE, I.E. , FOR THREE CONSECUTIVE ASSESSMENT YEARS, BEING A.YS. 2004-05 TO 2006-07, A GITATING THE DELETION OF THE PENALTY, LEVIED U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE RELEVANT YEARS, BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 41, MUMBAI (CIT(A) FOR SHORT) VIDE A COMBINED ORDER DATED 03.07.2012. 2.1 OPENING THE ARGUMENTS FOR AND ON BEHALF OF THE ASSESSEE, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT HE INTERCEDES OUT OF THE 2 ITA NOS. 6000 TO 6002/MUM/2012 (A.YS. 2004-05 TO 20 06-07) ASST. CIT VS. RAMESH D. SHAH TURN ONLY FOR THE REASON THAT THE APPEALS UNDER REF ERENCE ARE NOT MAINTAINABLE IN LAW, IN VIEW OF SECTION 268A OF THE ACT READ WITH THE LATES T CIRCULAR BY THE BOARD ISSUED THERE- UNDER, I.E., INSTRUCTION NO. 5 OF 2014 DATED 10.07. 2014, PRESCRIBING THE MONETARY LIMIT FOR THE APPEALS BY THE REVENUE BEFORE THE APPELLATE TRI BUNAL AT RS.4 LACS, PLACING COPY OF THE SAID INSTRUCTION ON RECORD. THE HONBLE JURISDI CTIONAL HIGH COURT HAS TAKEN A CONSISTENT VIEW THAT THE BOARDS INSTRUCTIONS SHALL APPLY TO P ENDING APPEALS AS WELL. ACCORDINGLY, THE SAME SHALL APPLY IN-AS-MUCH AS THE AMOUNT OF PE NALTY INVOLVED IN ALL THE CASES, DETAILED AS UNDER, IS WELL BELOW RS.4 LACS, AND FOR WHICH HE WOULD TAKE US TO THE GROUNDS OF APPEAL ASSUMED BY THE REVENUE IN EACH OF ITS THR EE APPEALS: A.Y. PENALTY AMOUNT IN DISPUTE 2004-05 RS.3,24,621/- 2005-06 RS.2,25,907/- 2006-07 RS.25,905/- CONTINUING FURTHER, HE WOULD SUBMIT THAT IN THIS VI EW OF THE MATTER, PARA 5 OF THE REVENUES SAID INSTRUCTION, WHICH STIPULATES THAT T HE REVENUE IN CASE OF A COMPOSITE ORDER, I.E., FOR MORE THAN ONE YEAR, FILE AN APPEAL FOR YEAR/S EVEN WHERE THE MONETARY LIMIT IS NOT EXCEEDED, IF IT EXCEEDS FOR AT LEAST ONE OF THE YEARS COVERED BY THE COMPOSITE ORDER, WOULD NOT OPERATE IN THE FACTS OF THE CASE , SO AS TO SAVE THE APPLICABILITY OF SECTION 268A AND, ACCORDINGLY, THE MAINTAINABILITY OF THE REVENU ES APPEALS. 2.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR), ON BE ING QUESTIONED IN THE MATTER, WOULD REITERATE THAT THE BOARDS INSTRUCTION THAT A PPLIES IS INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011, WHICH PRESCRIBES THE MONETARY LIMIT FOR THE REVENUES APPEALS BEFORE THE TRIBUNAL AT RS.3 LACS. THIS IS FOR THE REASON THAT THE SAID APPEALS WERE FILED ON 01.10.2012, WHEREAT THE SAID INSTRUCTION WAS IN FORCE. THE APPL ICABILITY OF THE INSTRUCTION QUA A PARTICULAR APPEAL HAS TO BE RECKONED WITH REFERENCE TO THE DATE WHEN THE APPEAL IS FILED AND NOT WHEN IT COMES UP FOR HEARING OR IS ACTUALLY HEARD, OVER WHICH THE REVENUE HAS NO 3 ITA NOS. 6000 TO 6002/MUM/2012 (A.YS. 2004-05 TO 20 06-07) ASST. CIT VS. RAMESH D. SHAH CONTROL. THE SAID ASPECT STANDS SPECIFICALLY ADDRES SED VIDE PARA 11 OF THE INSTRUCTION, DRAWING OUR ATTENTION THERETO, AND WHICH READS AS U NDER: INSTRUCTION NO.3/2011 DATED 09.02.2011 11. THIS INSTRUCTION WILL APPLY TO APPEALS FILED O N OR AFTER 9 TH FEBRUARY, 2011. HOWEVER, THE CASES WHERE APPEALS HAVE BEEN FILED BE FORE 9 TH FEBRUARY, 2011 WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OP ERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE PRIMARY FACTS ARE NOT IN DISPUTE, I.E., EITHER IN RESPECT OF THE DATE OF THE FILING OF THE APPEALS UNDER REFERENCE OR QUA THE AMOUNTS AND, THEREFORE, THE REVENUE IMPACT THER EOF. THE ISSUE ARISING BEFORE US IS WITH REGARD TO THE RELEVANT INSTRUCTIO N BY THE BOARD ISSUED U/S.119 R/W S. 268A, I.E., WHETHER INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011, AS CONTENDED BY THE REVENUE, OR INSTRUCTION NO.5 OF 2014 DATED 10.07.20 14, AS CLAIMED BY THE ASSESSEE. THIS IS A REGULAR ISSUE BEFORE US, I.E., AT THE MUMBAI B ENCH OF THE TRIBUNAL. THE HONBLE BOMBAY HIGH COURT, WHOSE DECISIONS ARE BINDING ON U S, HAS TAKEN A CONSISTENT VIEW IN THE MATTER, I.E., DESPITE THE CLEAR PRESCRIPTION OF THE INSTRUCTIONS ISSUED BY THE BOARD U/S.119 R/W S. 268A, WHEREBY THEY SHALL APPLY TO THE APPEAL S FILED ON OR AFTER THE DATE SPECIFIED THEREIN, WHILE THE APPEALS FILED BY THE REVENUE PRI OR TO THAT DATE WOULD CONTINUE TO BE COVERED BY THE INSTRUCTION IN FORCE AT THE TIME WHE N THE SAME WERE FILED, THAT IT SHALL NOT BE SO, AND THAT AN INSTRUCTION WOULD APPLY TO PENDI NG (FOR HEARING) APPEALS AS WELL. WE MAY TOWARD THIS REFER TO THE DECISIONS BY THE HONB LE COURT IN THE CASE OF CIT VS. VARSHA DILIP KOLHE [2013] 350 ITR 384 (BOM); CIT V. VITESSEE TRADING LTD . [2011] 331 ITR 433 (BOM); AND CIT VS. MADHUKAR K. INAMDAR (HUF) [2009] 318 ITR 149 (BOM). THE MATTER STANDS DEALT WITH IN SOME DETAIL BY THE TRIBUNAL VI DE ITS DECISION IN THE CASE OF ITO VS. PARAMPARA BUILDERS & DEVELOPERS PVT. LTD. (IN ITA NO. 1681/MUM/2011 DATED 30.01.2015). RESPECTFULLY FOLLOWING THE DECISIONS B Y THE HONBLE BOMBAY HIGH COURT, IT IS THE INSTRUCTION NO.5 OF 2014 THAT SHALL APPLY, SO T HAT THE MONETARY LIMIT U/S.268A APPLICABLE WOULD BE WITH REFERENCE TO THIS INSTRUCT ION, I.E., AT RS.4 LACS. THE NON- 4 ITA NOS. 6000 TO 6002/MUM/2012 (A.YS. 2004-05 TO 20 06-07) ASST. CIT VS. RAMESH D. SHAH APPLICABILITY OF PARA 5 OF THE SAID CIRCULAR IS APP ARENT FROM THE FOREGOING PARA 2.1 OF THIS ORDER. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE REVENUES APPEALS ARE DISMISS ED. -. */ % - % * 01 ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 29, 2 015 AT THE CONCLUSION OF THE HEARING SD/- SD/- (VIJAY PAL RAO) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' 2) MUMBAI; 3( DATED : 30.01.2015 .(../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. ' 4* ( ) / THE CIT(A) 4. ' 4* / CIT - CONCERNED 5. 7 8 #*(9: , + 9:. , ' 2) / DR, ITAT, MUMBAI 6. 8 ; < ) / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ' 2) / ITAT, MUMBAI