ITO 6(1)(2), MUMBAI V. ALOIS GUTENBERG MACHINES P.LTD, NAVI MUMBAI

ITA 6028/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92831 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 04-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business expenditure; Tax effect
• Section: 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER . / ITA NO.6028/MUM/2012 / ASSESSMENT YEAR 2008-09 THE ITO 6(1)(2), ROOM NO.503, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 / VS. M/S. ALOIS GUTENBERG MACHINES P. LTD. 3,MAYFLOWER, PLOT NO.139, SECTOR -12, VASHI, NAVI MUMBAI 400703 ./ ./ PAN/GIR NO. : AADCA 2138F ( / APPELLANT ) .. ( / RESPONDENT ) C.O.NO.260/MUM/2013 (ARISING OUT OF ITA NO.6028/MUM/2012, A.Y. 2008-09) M/S. ALOIS GUTENBERG MACHINES P. LTD. 3,MAYFLOWER, PLOT NO.139, SECTOR -12, VASHI, NAVI MUMBAI 400703 / VS. THE ITO 6(1)(2), ROOM NO.503, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 ./ ./ PAN/GIR NO. : AADCA 2138F CROSS OBJECTOR .. APPELLANT IN APPEAL REVENUE BY SHRI JEEVANLAL LAVIDIYA ASSESSEEE BY MS. RITIKA AGARWAL ' # $ / DATE OF HEARING : 10/06/2015 ' # $ / DATE OF PRONOUNCEMENT : 10/06/2015 / O R D E R PER I.P.BANSAL,J.M: THIS APPEAL IS FILED BY THE REVENUE AND CROSS OBJEC TION IS FILED BY THE ASSESSEE. THEY ARE DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-14, MUMBAI DATED 31/07/2012 FOR ASSESSMENT YEAR 2008-09. GROUNDS OF APPEAL READ AS UNDER: . / ITA NO.6028/MUM/2012 / ASSESSMENT YEAR 2008-09& C.O. NO.260/MUM/2013 2 GROUNDS OF REVENUES APPEAL : 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO AMOUNTING TO R S. 12,46,016/- REPRESENTING THE DISALLOWANCE OF EXPENDITURE WITHOUT APPRECIATING TH E FACT THAT THE ASSESSEE IS NOT CARRYING ON THE BUSINESS DURING THE IMPUGNED YEAR A ND ACCORDINGLY NO BUSINESS EXPENDITURE IS ALLOWABLE' 2. 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. C!T(A) ERRED IN IGNORING THE FACT THAT THE ASSESSEE DID NOT DISCHARGE ITS ON US OF PROVIDING EVIDENCE IN THE FORM OF BILLS AND VOUCHERS TO ESTABLISH THE GENUINENESS OF EXPENSES.' GROUNDS OF ASSESSEES CROSS OBJECTION: THE RESPONDENT INDIVIDUAL IS AGGRIEVED BY THE ORDER PASSED BY LD. CIT(A)-14, MUMBAI AND IS IN APPEAL: 1. BECAUSE, THE LD. CIT(A) HAS ERRED IN LAW IN UPH OLDING THE VALIDITY OF THE ASSESSMENT ORDER EVEN THOUGH THAT IT HAD BEEN PASSED ERRONEOUS LY. 2.BECAUSE, THE LD. CIT(A) HAS ERRED IN LAW AND ON F ACTS IN HOLDING THAT THE CONSULTANCY AND ADVISORY FEES AMOUNTING TO RS.750,000/- WAS IN THE NATURE OF INCOME FROM OTHER SOURCESINSTEAD OF PROFIT AND GAINS FROM BUSINESS OR PROFESSIONS. 2. THE RETURN OF INCOME WAS FILED BY THE ASSESSEE A T NIL AND IT HAS BEEN ASSESSED AT AN INCOME OF RS.13,09,100/- BY WAY OF AN EX-PARTE ORDER UNDER SECTION 144 OF THE INCOME TAX ACT, 1961(THE ACT). THE LD. CIT(A) HAS DELETED THE ADDITION TO THE EXTENT OF RS.12,46,016/- AGAINS T WHICH THE REVENUE IS AGGRIEVED AND FILED AFOREMENTIONED GROUNDS OF APPEA LS. 3. DURING THE COURSE OF HEARING IT WAS FOUND THAT T AX EFFECT WITH REGARD TO DELETION AGITATED BY THE REVENUE IS LESS THAN RS.4. 00 LACS. VIDE CBDT INSTRUCTION NO.5/2014 (F.NO.279/MISC.142/2007-ITJ(P T)] DATED 10/07/2014, THE TAX EFFECT LIMIT FOR FILING THE APPEAL BEFORE T HE TRIBUNAL WAS ENHANCED FROM RS.3.00 LACS TO RS.4.00 LACS. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES. HOWEVER, ACCORDING TO FOLLOWING DECISIONS OF HONBLE JURISD ICTIONAL HIGH COURT, SUCH NOTIFICATIONS ISSUED UNDER SECTION 268A WOULD BE AP PLICABLE EVEN TO THE APPEALS FILED BEFORE ISSUE OF THE NOTIFICATION IF THE LIMIT IS ENHANCED: . / ITA NO.6028/MUM/2012 / ASSESSMENT YEAR 2008-09& C.O. NO.260/MUM/2013 3 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 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. 6. SO FAR AS IT RELATES TO CROSS OBJECTION FILED B Y THE ASSESSEE, IN VIEW OF DISMISSAL OF REVENUES APPEAL, LD. AR DID NOT PRESS THE CROSS OBJECTION AND SHE ENDORSED ON FORM NO.36A AS NOT PRESSED. ACCORD INGLY, CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED BEING NOT PRESSED. . / ITA NO.6028/MUM/2012 / ASSESSMENT YEAR 2008-09& C.O. NO.260/MUM/2013 4 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED ON ACCOUNT OF LOW TAX EFFECT AND CROSS OBJECTION FILED BY THE ASS ESSEE IS DISMISSED BEING NOT PRESSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/06/2015 ' )* + , 10/06/2015 ' SD/- SD/- ( . / D.KARUNAKARA RAO ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ) MUMBAI; + DATED 10/06/2015 ! / 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. / GUARD FILE. / BY ORDER, 0# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ) / ITAT, MUMBAI . . ./ VM , SR. PS