ITO (TDS) - 1 (2)(2), MUMBAI V. EXPERTEASE (INDIA) PVT. LTD., MUMBAI

ITA 6737/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3492 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 29-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR MENON
• Keywords: Tax effect; TDS
• Section: 201(1); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI RAVISH SOOD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6737/MUM/2018 ASSESSMENT YEAR: 2008-09 & ITA NO. 6736/MUM/2018 ASSESSMENT YEAR: 2009-10 ITO(TDS)-1(2)(2), ROOM NO. 808, 8 TH FLOOR, K.G. MITTAL HOSPITAL, CHARNI ROAD (WEST), MUMBAI-400002. VS. M/S EXPERTEASE (INDIA) PRIVATE LIMITED, 601, 6 TH FLOOR, MADINA HOUSE, SANTAWADI LANE, ANDHERI (WEST), MUMBAI-400058. PAN NO. AABCE2693P APPELLANT RESPONDENT REVENUE BY : MR. VIJAY KUMAR MENON, DR ASSESSEE BY : NONE DATE OF HEARING : 11/11/2020 DATE OF PRONOUNCEMENT : 12/11/2020 ORDER PER BENCH THE CAPTIONED APPEALS FILED BY THE REVENUE ARE DIRE CTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5 9, MUMBAI [IN SHORT CIT(A)] AND ARISE OUT OF ORDER PASSED U/S 201(1) & 202(1A) OF THE INCOME TAX ACT 1961, (THE ACT). THOUGH THE CASE WAS FIXE D FOR HEARING ON 13.11.2019, 16.12.2019, 16.01.2020, 20.02.2020, 14. 09.2020 & 11.11.2020, NEITHER THE ASSESSEE NOR ITS AUTHORIZED REPRESENTAT IVE APPEARED BEFORE THE ITA NO. 6737 & 6736/MUM/2018 M/S EXPERTEASE (INDIA) P. LTD. 2 TRIBUNAL ON THE ABOVE DATES. AS THERE IS NON-COMPLI ANCE BY THE ASSESSEE, WE ARE PROCEEDING TO DISPOSE OFF THESE APPEALS, AFTER EXAMINING THE DOCUMENTS AVAILABLE ON RECORD AND AFTER HEARING THE LD. DEPAR TMENTAL REPRESENTATIVE (DR). 2. CENTRAL BOARD OF DIRECT TAXES (CBDT) VIDE CIRCULAR NO. 17/2019 DATED 08.08.2019 HAS AMENDED CIRCULAR NO. 3/2018 DA TED 11.07.2018 FOR FURTHER ENHANCEMENT OF MONETARY LIMIT FOR FILING OF APPEALS BY THE REVENUE BEFORE THE ITAT, HIGH COURTS AND SLPS/APPEALS BEFOR E SUPREME COURT AS MEASURES FOR REDUCING LITIGATION. CBDT VIDE CIRCULAR NO. 3/2018 DATED 11.07.2018 HAS SPECIFIED THAT APPEALS SHALL NOT BE FILED BEFORE THE INCOME TAX AP PELLATE TRIBUNAL (ITAT) IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE M ONETARY LIMIT OF RS.20,00,000/-. FOR THIS PURCHASE, TAX EFFECT MEA NS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX TH AT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED. FURTHER, TAX EFFECT SHALL BE TAXES INCLUDING APPLICABLE SURCHAR GE AND CESS. HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT W HERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEAB ILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENA LTY ORDER, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. AT PARA 13 OF THE SAID CIRCULAR, IT HAS BEEN MENTIO NED THAT: ITA NO. 6737 & 6736/MUM/2018 M/S EXPERTEASE (INDIA) P. LTD. 3 13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS OBJECTION/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. PE NDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN /NOT PRESSED. 3. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGAT ION, CBDT VIDE CIRCULAR NO. 17/2019 HAS FIXED THE MONETARY LIMIT F OR FILING OF APPEALS BEFORE ITAT AT RS.50,00,000/-. 4. IN THE INSTANT APPEAL, THE TOTAL TAX EFFECT AS PER FORM NO. 36 FILED BY THE REVENUE ON 29.11.2018 FOR THE AY 2008-09 IS RS. 44,60,544/- [RS.31,20,690/- UNDER THE 1 ST , 2 ND & 5 TH GROUND OF APPEAL ; RS.13,26,293/- UNDER THE 3 RD AND 5 TH GROUND OF APPEAL]. SIMILARLY, THE TOTAL TAX EFFECT AS PER FORM NO. 36 FILED BY THE REVENUE ON 29.11.2018 FOR THE AY 2009-10 IS RS.40,05,540/- [RS.31,41,600/- UNDER THE 1 ST , 2 ND & 5 TH GROUND OF APPEAL ; RS.8,63,940/- UNDER THE 3 RD AND 5 TH GROUND OF APPEAL]. 5. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE (DR ) FAIRLY AGREES THAT THE TAX EFFECT HEREIN IS BELOW THE MONETARY LI MIT OF RS.50,00,000/- FIXED BY THE ABOVE CIRCULAR FOR FILING OF APPEALS B EFORE THE ITAT. HOWEVER, IT IS PLEADED BY HIM THAT IN CASE OF EXCEPTIONS TO THE ABOVE CIRCULAR, THE APPELLANT MAY BE ALLOWED TO BRING IT TO THE NOTICE OF THE TRIBUNAL. CONSIDERING THE SUBMISSION, WE MAKE IT CLEAR THAT T HE APPELLANT SHALL BE AT LIBERTY TO POINT OUT THE EXCEPTIONS TO WHICH THE AB OVE CIRCULAR MAY NOT APPLY BY FILING MISCELLANEOUS APPLICATIONS. ITA NO. 6737 & 6736/MUM/2018 M/S EXPERTEASE (INDIA) P. LTD. 4 6. IN VIEW OF THE CBDT CIRCULAR NO. 17/2019, THIS APPEALS INVOLVING TAX EFFECT OF LESS THAN RS.50,00,000/- ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 12/11/2020. SD/- SD/- ( RAVISH SOOD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 12/11/2020 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI