JT CIT SP RG 19, MUMBAI V. DESAI INVESTMENTS P.LTD, MUMBAI

ITA 6623/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4103 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 19-02-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 31-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNES PUTHOORAN THOMAS
• Assessee Lawyers: DHAVEL SHAH
• Keywords: Tax effect
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI BEFORE SHRI SAKTIJIT DEY, JM AND SHRI RAJESH KUMAR, AM ./ I.T.A. NO.6623/MUM/2012 ( / ASSESSMENT YEAR: 1998-99) INCOME TAX OFFICER-2(1)2,R.NO.575 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020. / VS. M/S. DESAI INVESTMENTS PVT. LTD. 24/26, CAMA BLDG., 1 ST FLOOR, DALAL STREET, FORT, MUMBAI-400 023. ./ ./PAN/GIR NO. AAACD 1356M ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : MS. AGNES PUTHOORAN THOMAS / RESPONDENT BY : SHRI DHAVEL SHAH / DATE OF HEARING : 21/04/2016 !'# / DATE OF PRONOUNCEMENT : 21/04/2016 $% / O R D E R PER RAJESH KUMAR, A. M: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 31.08.2012 OF COMMISSIONER OF INCOME TAX (APPEALS)-4, MUMBAI (HER EINAFTER CALLED AS THE CIT(A) ) FOR ASSESSMENT YEAR 1998-99. 2 ITA NO.6623/MUM/2012 (A.Y. 98-99) ITO VS. M/S.DESAI INVESTMENTS PVT. LTD. 1. ON THE FACTS AND IN THE CIRCUMSTANCES O THE CASE A ND IN LAW, THE LEARNED CIT(A) ERRED IN GRANTING RELIEF TO THE ASSESSEE BY APPORTIONING A MAJOR PART OF THE EXPENSES TO THE ANCILLARY ACTIVITY OF EARNIN G BROKERAGE & COMMISSION AND ALLOCATING A MINISCULE PROPORTION TO THE MAIN A CTIVITY OF TRADING IN SHARES AND SECURITIES THEREBY OVERLOOKING THE DETAI LED REASONS GIVEN BY THE AO IN THE ASSESSMENT ORDER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES O THE CASE AN D IN LAW, THE LEARNED CIT(A) ERRED IN ENTERTAINING THE ASSESSEES APPLICA TION U/S.154 WHEN THERE WAS NO APPARENT MISTAKE POINTED OUT BY THE ASSESSEE AND THIS ORDER U/S 154 AMOUNTS TO FRESH ADJUDICATION, WHICH I BEYOND THE S COPE OF RECTIFICATION. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT TH E TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED. 2. AT THE OUTSET THE LD. AR OF THE ASSESSEE POINTED OUT THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS.10.00 LAKHS AND FURTHER SUBMITTE D THAT IN VIEW OF THE CBDT CIRCULAR NO.21/2015, DATED 10.12.2015 BROUGHT OUT BY THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FI NANCE, GOVERNMENT OF INDIA, THE APPEAL WAS NOT MAINTAINABLE AND BE DISMISSED. T HE LD. DR ALSO AGREED TO THE SUBMISSION OF THE LD. AR. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE RECORDS BEFORE US THAT THE TAX INV OLVED IN THE DISPUTED ISSUE IS BELOW RS.10 LACS AND THEREFORE, IN VIEW OF THE CIRC ULAR NO 21/2015 DATED 10 TH 3 ITA NO.6623/MUM/2012 (A.Y. 98-99) ITO VS. M/S.DESAI INVESTMENTS PVT. LTD. DECEMBER, 2015 NO APPEALS SHOULD BE FILED BY THE RE VENUE BEFORE THE TRIBUNAL WHICH HAS TAX EFFECT OF RS. 10.00 LACS OR LESS AND THIS CIRCULAR IS ALSO APPLICABLE RETROSPECTIVELY TO ALL PENDING APPEALS. THE RELEVAN T EXTRACT THE SAID CBDT CIRCULAR (SUPRA) IS AS UNDER:- THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PEN DING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDI NG APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRA WN/NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE IN STRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4. CONSIDERING THE ABOVE, THE APPEAL FILED BY THE R EVENUE, IS THEREFORE DISMISSED. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21ST APRIL, 2 016 SD/- SD/- (SAKTIJIT DEY) (RAJESH KUMAR) &' $ / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER ( ) MUMBAI; *$ DATED :21.04.2016 PS. ASHWINI 4 ITA NO.6623/MUM/2012 (A.Y. 98-99) ITO VS. M/S.DESAI INVESTMENTS PVT. LTD. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI