DY.DIRECTOR OF INCOME TAX(INT TAX)-4(1), MUMBAI V. M/S. MODI ENTERTAINMENT NETWORK MAURITIUS LTD.,

ITA 6589/MUM/2008

• Counselvise Citation: 658919914 RSA 2008
• Duration Of Justice: 3 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 11-10-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 12-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Assessee Lawyers: HARESH G BUCH
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH L, MUMBAI BEFORE SHRI P.M.JAGTAP (A.M0) & SHRI N.V.VASUDEVAN (J.M) ITA NO.6589/MUM/2008(A.Y. 2004-05) THE DY. DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) 4(1), 133, SCINDIA HOUSE, BALLARD PIER, MUMBAI 400 038. (APPELLANT) VS. M/S. MODI ENTERTAINMENT NETWORK MAURITIUS LTD., 4 TH FLOOR, IBL HOUSE, CAUDAN PORT LOUIS, MAURITIUS. PAN: AACCM 9316L (RESPONDENT) APPELLANT BY : SHRI JITENDRA YADAV RESPONDENT BY : SHRI HARESH G. BUCH DATE OF HEARING : 05/01/2012 DATE OF PRONOUNCEMENT : 13/01 /2012 ORDER PER N.V.VASUDEVAN, J.M, THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDE R DATED 29/8/2008 OF CIT(A)-33, MUMBAI RELATING TO ASSESSMENT YEAR 20 04-05. 2. ORIGINALLY THIS APPEAL WAS LISTED FOR HEARING ON 26/8/2010. THE TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE FOR T HE REASON THAT THE TAX EFFECT INVOLVED IN THE APPEAL FILED BY THE REVENUE WAS BELOW RS. 2.00 LACS, WHICH IS THE MONETARY LIMIT PRESCRIBED BY THE CBDT FOR FILING APPEAL BEFORE THE TRIBUNAL. LATER ON THE REVENUE FILED A MISCEL LANEOUS APPLICATION NO.749/M/2010 POINTING OUT THAT THE TAX EFFECT WAS MORE THAN RS. 2.00 LCAS. THE TRIBUNAL ACCEPTED THE PLEA OF THE REVENU E AND RECALLED ITS ORDER DATED 31/3/2010 BY AN ORDER DATED 28/1/2011. WHEN THE APPEAL WAS ITA NO.6589/MUM/2008(A.Y. 2004-05) 2 LISTED FOR HEARING TODAY THE LD. COUNSEL FOR THE AS SESSEE FILED BEFORE US INSTRUCTION NO.3 OF 2011 DATED 9/2/2011, WHICH PRES CRIBES THAT THE MONETARY LIMIT FOR FILING APPEALS BEFORE THE TRIBUN AL IS RS. 3.00 LACS. ADMITTEDLY THE TAX EFFECT INVOLVED IN THIS APPEAL I S LESS THAN RS. 3.00 LACS. THIS CIRCULAR PRESCRIBING HIGHER MONETARY LIMIT FOR FILING APPEAL BEFORE TRIBUNAL HAS BEEN HELD TO BE APPLICABLE TO APPEALS PREFERRED BY THE REVENUE BEFORE 9/2/2011, BUT THOSE APPEALS WHICH ARE PENDIN G BEFORE THE COURT FOR FINAL DISPOSAL AS ON 9/2/2011. THE LD. COUNSEL FO R THE ASSESSEE HAS FILED BEFORE US THE ORDER OF THE A BENCH OF ITAT MUMB AI IN THE CASE OF ITO VS. M/S. LAXMI JEWEL PVT. LTD. IN ITA NO.2165/M/2010. THE TRIBUNAL IN THE AFORESAID DECISION HELD AS FOLLOWS: 4. AT THE OUTSET THE LEARNED COUNSEL SUBMITTED THA T THE TAX AMOUNT INVOLVED IN THIS APPEAL IS ONLY RS. 2,07,5L2/- AND AS PER INSTRUCTION NO. 3/2011 THE REVENUE SHOULD NOT CONTEST APPEAL UP TO RS.3,00,000/- AS PER THE NEW MONITORY LIMIT. IT WAS FURTHER SUBMI TTED THAT THE HONBLEBOMBAY HIGH COURT IN THE CASE OF CIT VS. MAD HUKAR K. INAMDAR (HUF) 318 ITR 149 CONSIDERED THE MAINTAINAB ILITY OF THE APPEALS ON SMALL TAX BASIS AND HELD THAT CBDT CIRCU LAR ISSUED LATER WOULD BE APPLICABLE TO ALL THE APPEALS PENDING IN A PPELLATE FORUMS AND, THEREFORE, RELYING ON THE CBDT INSTRUCTION NO. 5 OF 2008 THE APPEALS WERE DISMISSED WHERE THE TAX EFFECT WAS LEA S THAN THE PRESCRIBED LIMIT. THE LEARNED COUNSEL RELIED ON THE PRINCIPLES ESTABLISHED IN THE ABOVE SAID CASE TO SUBMIT THAT T HE PRESENT LIMIT OF RS.3,00,000/- MAKE THE REVENUE APPEAL NON-MAINTAINA BLE AS THE TAX EFFECT IS LESS THAN RS.3,00,000/-. HE FURTHER SUBMI TTED THAT THE HONBIE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128 OF 2008 DATED 03.03.2011 RELIED ON THE LATEST C BDT INSTRUCTION TO DISMISS THE APPEAL AS NOT MAINTAINABLE. IT WAS THE SUBMISSION OF THE LEARNED COUNSEL THAT THE APPEAL IS NOT MAINTAINABLE . 5. THE LEARNED D.R., HOWEVER, OBJECTED TO THE SUBMI SSIONS STATING THAT AT THE TIME OF PREFERRING THE APPEAL THE TAX LIMIT WAS ONLY RS. 2,00,000/- AND THAT INSTRUCTION WAS FOLLOWED. 6. WE HAVE CONSIDERED THE ISSUE. THERE IS NO DOUBT THAT THE TAX EFFECT IN THIS CASE IF ONLY 2,07,512/-. AS PER INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011 APPEAL BEFORE APPELLATE TRIBUNAL CAN BE FILED WHERE THE TAX ITA NO.6589/MUM/2008(A.Y. 2004-05) 3 EFFECT EXCEEDS THE MONITORY LIMIT OF RS. 3,O0,000/- . HOWEVER, CONSIDERING THE SIMILAR SITUATION WHERE TAX LIMIT S WERE MODIFIED BY THE CBDT INSTRUCTION NO. 5 OF 2008 THE HONBLE JURIS DICTIONAL HIGH COURT IN THE CASE OF CIT VS. MADHUKAR K. INAMDAR (H UF) (SUPRA) HELD THAT THE CIRCULAR WILL BE APPLICABLE TO THE CASES P ENDING BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL. I N VIEW OF THE ORDER OF THE JURISDICTIONAL HIGH COURT WE HOLD THAT INSTRUCT ION NO. 3 DATED 09.02.2011 IS APPLICABLE FOR THE APPEAL PREFERRED B Y THE REVENUE. THEREFORE, THE APPEAL IS DISMISSED ON THE ISSUE OF TAX EFFECT INVOLVED. EVEN OTHERWISE THERE IS NO CASE FOR THE REVENUE ON MERITS AS THE ISSUE WAS HELD IN AGAINST THE REVENUE BY THE ITAT ORDER I N THE CASE OF LIVING STONES JEWELLERY (P) LTD. VS. DCIT 31 SOT 323, WHIC H THE CIT(A) FOLLOWED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. IN VIEW OF THE ABOVE WE ARE OF THE VIEW THAT THIS A PPEAL BY THE REVENUE HAS TO BE DISMISSED AS THE TAX EFFECT INVOLVED IN THE A PPEAL IS LESS THAN RS. 3.00 LACS. 3. IN THE RESULT, THE APPEAL BY THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 13 TH DAY OF JAN.2012. SD/- SD/- (P.M.JAGTAP ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 13 TH JAN.2012. COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RL BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. ITA NO.6589/MUM/2008(A.Y. 2004-05) 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 05/01/2012 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 05/01/2012 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER