DCIT (IT) 3(3)(1), MUMBAI V. NIKO (NELPIO ) LTD, MUMBAI

ITA 6172/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2154 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2015-2016
• Appeal Filed On: 30-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARSHAD VENGURLKER
• Keywords: Tax effect

Judgement Text

1 ITA NO.S 6172 & 6173/MUM/2018 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I, MUMBAI BEFORE SHRI C.N.PRASAD (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO. 6172/MUM/2018 (ASSESSMENT YEAR: 2015-16) DCIT (IT)-3(3)(1) ROOM NO. 1630,16 TH FLOOR AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-400 020 VS M/S. NIKO ( NELPIO) LIMITED 407-411/311, OBEROI CHAMBER II PLOT NO.645/646 NEW LINK ROAD ANDHERI(WEST) MUMBAI-400 053 PAN: AA CCN4402A APP ELLANT RESPONDENT & I.T.A NO. 6173/MUM/2018 (ASSESSMENT YEAR: 2008-09) DCIT (IT)-3(3)(1) ROOM NO. 1630,16 TH FLOOR AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-400 020 VS M/S NIKO ( NECO) LIMITED 407-411/311, OBEROI CHAMBER II PLOT NO.645/646 NEW LINK ROAD ANDHERI(WEST) MUMBAI-400 053 PAN: AACCN4403B APPELLANT RESPONDENT APPELLANT BY SHRI HARSHAD VENGURLKER, (SR.DR) RESPONDENT BY SHRI. VIJAY MEHTA, (AR) DATE OF HEARING 25-11-2019 DATE OF PRONOUNCEMENT 25 -11-2019 O R D E R PER G MANJUNATHA, AM: 2 ITA NO.S 6172 & 6173/MUM/2018 THESE TWO APPEALS FILED BY THE REVENUE ARE DIRECT ED AGAINST SEPARATE, BUT IDENTICAL ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) -57, MUMBAI, FOR THE ASSESSMENT YEAR (AY) 2008-09, DATED 07/08/2018 AND FOR THE ASSESSMENT YEAR (AY) 2015-16 , DATED 29/08/2018. SINCE, THE FACTS ARE IDENTICAL AND ISSU ES ARE COMMON, FOR THE SAKE OF CONVENIENCE, THESE APPEALS WERE HEARD T OGETHER AND ARE DISPOSED-OFF BY THIS CONSOLIDATED ORDER. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATER IALS AVAILABLE ON RECORD. DURING COURSE OF HEARING, THE LD. AR FOR TH E ASSESSEE SUBMITTED THAT TAX EFFECT INVOLVED IN THESE APPEALS FILED BY THE REVENUE IS LESS THAN RS. 50 LACS AND IN VIEW OF LATEST CBDT CIRCULAR NO. 3/2018 DATED 11-7- 2018, AND ALSO MODIFIED CIRCULAR NO. 17/2019 DATED 08/08/2019, APPEALS FILED BY THE REVENUE ARE NOT MAINTAINABLE AND NEEDS TO BE DISMISSED. THE LD. DR, SUBMITTED THAT NO DOUBT TAX EFFECT INVO LVED IN THESE APPEALS OF THE REVENUE IS LESS THAN RS. 50 LACS AND IT IS C OVERED BY CBDT CIRCULAR NO. 17/2019 DATED 08/08/2019, HOWEVER IT A PPEARS THAT ISSUE INVOLVED IN THESE APPEALS ARE COVERED BY EXCEPTION AS PROVIDED UNDER CLAUSE (E) OF SUBSEQUENT CIRCULAR AND THEREFORE, IF REQUIRED THE REVENUE SHALL BE ALLOWED TO FILE MISCELLANEOUS APPLICATION TO RECALL THE ORDER. WE, FIND THAT, THE CBDT, RECENTLY HAD ISSUED A CIRCULAR NO. 3/2018 DATED 11- 7-2018, SUPERSEDING ITS EARLIER CIRCULAR NO. 21/201 5 AND ENHANCED 3 ITA NO.S 6172 & 6173/MUM/2018 MONETARY LIMIT FOR FILING APPEAL BEFORE VARIOUS APP ELLATE AUTHORITIES AND ACCORDINGLY, ENHANCED MONETARY LIMIT TO RS. 20,00,0 00/- FOR FILING APPEAL BEFORE THE TRIBUNAL. FURTHER, THE BOARD HAS ISSUED ONE MORE CIRCULAR VIDE CIRCULAR NO.17/2019 DATED 08/08/2019 AND ENHANCED M ONETARY LIMIT FOR FILING APPEAL BEFORE APPELLATE TRIBUNAL TO RS. 50,0 0,000/-. FURTHER, IN THE SAID CIRCULAR, THE CBDT HAD INSTRUCTED ITS OFFICER S TO FILE APPLICATION FOR WITHDRAWAL OF APPEAL ALREADY FILED OR NOT TO PURSUE PENDING APPEALS. WE, THEREFORE, BY TAKING INTO ACCOUNT THE CBDT CIRCULAR NO. 3/2018 DATED 11- 7-2018 AND CIRCULAR NO.17/2019 DATED 08/08/2019 AND ALSO CONSIDERING THE FACT THAT TAX EFFECT INVOLVED IN THE PRESENT AP PEALS ARE LESS THAN THE AMOUNT OF MONETARY LIMIT FIXED BY THE CBDT FOR NOT FILING APPEAL, DISMISSED APPEAL FILED BY THE REVENUE AS NOT MAINTA INABLE. WE, FURTHER NOTED THAT THE CO-ORDINATE BENCH OF ITAT, AHMADABAD A BENCH IN ITA.NO. 1398/AHD/2004, VIDE ORDER DATED 14/08/2019 HAS PASSED DETAILED ORDER CONSIDERING NEW CIRCULAR ISSUED BY T HE CBDT AND HELD THAT EXCEPT AMENDMENT TO PARA 3 OF THE CIRCULAR NO. 3/2018 DATED 11/07/2018, ALL OTHER PROVISIONS OF THE CIRCULAR NO .03/2018 (SUPRA) HAVE REMAIN INTACT, THEREFORE, THIS CIRCULAR IS APPLICAB LE EVEN FOR PENDING APPEALS AND ACCORDINGLY, REJECTED THE ARGUMENTS OF THE REVENUE THAT THE EFFECT OF THE CIRCULAR SHALL COME INTO FORCE FROM T HE DATE OF ISSUE OF THIS CIRCULAR. THEREFORE, CONSIDERING THE FACTS AND CIRC UMSTANCES OF THESE 4 ITA NO.S 6172 & 6173/MUM/2018 CASES AND ALSO TAKEN NOTE OF CIRCULARS ISSUED BY TH E CBDT INCLUDING CIRCULAR NO. 17/2019 DATED 08/08/2019, AND ALSO BY FOLLOWING THE DECISION OF CO-ORDINATE BENCH, WE DISMISSED APPEALS FILED BY THE REVENUE AS NOT MAINTAINABLE. HOWEVER, WE KEEP OPEN OPTION TO THE REVENUE TO FILE A MISCELLANEOUS APPLICATION, IF NEC ESSARY, IN CASE THE ISSUES INVOLVED IN THE PRESENT APPEALS COMES WITHIN 3 EXCEPTIONS AS PROVIDED IN PARA 10 OF SAID CIRCULAR AND CLAUSE (E) OF SUBSEQUENT CIRCULAR. 3. IN THE RESULT, BOTH APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH NOVEMBER, 2019 SD/- SD/- (C.N.PRASAD) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 25 -11-2019 THIRUMALESH, SR.PS COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI