ITO 2(1)(2), MUMBAI V. C.N. GANDEVIA CLEARING & FORWRDING AGENTS P. LTD, MUMBAI

ITA 6758/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3186 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 22-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R B VORA
• Keywords: Audit objection; Tax effect
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.6758/M/2013 ASSESSMENT YEAR: 2007-08 O/O INCOME TAX OFFICER 2(1)2, R. NO.543, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 VS. M/S. C.N. GANDEVIA CLEARING & FORWARDING AGENTS PVT. LTD., 6/2 VRINDAVAN SOCIETY, N.S. MANKIKAR MARG, SION, MUMBAI 400 022 PAN: AABCC3364P (APPELLANT) (RESPONDENT) ITA NO.6462/M/2013 ASSESSMENT YEAR: 2007-08 M/S. C.N. GANDEVIA CLEARING & FORWARDING AGENTS PVT. LTD., 6/2 VRINDAVAN SOCIETY, N.S. MANKIKAR MARG, SION, MUMBAI 400 022 PAN: AABCC3364P VS. INCOME TAX OFFICER 2(1)2, R. NO.543, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI R.B. VORA, A.R. REVENUE BY : DR. S. PANDIAN, D.R. DATE OF HEARING : 28.03.2016 DATE OF PRONOUNCEMENT : 31.03.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE TITLED CROSS APPEALS ONE BY THE ASSESSEE AND THE OTHER BY THE REVENUE HAVE BEEN PREFERRED AGAINST THE ORDER DATED 17.09.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER R EFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEAR 2007-08. 2. THE REVENUE IN THIS APPEAL HAS AGITATED THE ACTI ON OF THE LD. CIT(A) IN DIRECTING THE ASSESSING OFFICER (HEREINAFTER REFERR ED TO AS THE AO) TO REDUCE THE ITA NO.6758/M/2013 M/S. C.N. GANDEVIA CLEARING & FORWARDING AGENTS PVT . LTD. 2 ADDITION OF RS.23,71,130/- WHICH WAS MADE BY THE AO TO THE NET PROFITS ON ACCOUNT OF UNDISCLOSED CONTRACT RECEIPTS. AT THE OUTSET, THE LD. D.R. HAS STATED THAT THE TA X EFFECT IN THIS APPEAL IS LESS THAN RS.10 LAKHS AND THEREFORE AS PER THE CBDT CIRCULAR NO.21/2015 DATED 10/12/2015, HE DOES NOT PRESS THE APPEAL OF THE REV ENUE AND THE SAME MAY BE DISMISSED AS NOT PRESSED. 3. THE CBDT VIDE CIRCULAR DATED 10/12/2015 (SUPRA) HAS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPART MENT BEFORE THE TRIBUNAL AND FURTHER VIDE PARA 10 OF THE SAID CIRCULAR IT HA S BEEN CLARIFIED THAT SAID CIRCULAR IS APPLICABLE RETROSPECTIVELY TO THE PENDI NG APPEALS ALSO. THE RELEVANT PORTION OF THE CIRCULAR DATED 10/12/2015 (SUPRA) IS REPRODUCED BELOW:- 3.HENCEFORTH APPEALS/SLPS SHALL NOT BE FILED IN CAS ES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER:- SL. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMI TS (IN RS.) 1. BEFORE APPELLATE TRIBUNAL 10,00,000 2. BEFORE HIGH COURT 20,00,000 3. BEFORE SUPREME COURT 25,00,000 ................................................ ................................................... ....................... 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE B EEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME I N RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREI NAFTER REFERRED TO AS 'DISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUD E ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISP UTE. IN CASE THE CHARGEABILITY 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. I N CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR ITA NO.6758/M/2013 M/S. C.N. GANDEVIA CLEARING & FORWARDING AGENTS PVT . LTD. 3 (B) WHERE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR C IRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN A SSETS/ BANK ACCOUNTS. 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE S HALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OTHER THAN INCOME TA X. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVER NED BY RELEVANT PROVISIONS OF STATUTE & RULES. FURTHER, FILING OF APPEAL IN CA SES OF INCOME TAX, WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUC H AS THE CASE OF REGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT, 1961, SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AN D DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR C ASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIB UNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWAL NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. (UNDERLINED FOR EMPHASIS BY US) 4. THE TAX EFFECT IN DISPUTE IN THE CAPTIONED APPEA L IS STATED TO BE BELOW THE MONETARY LIMIT OF RS.10.00 LACS AS SPECIFIED IN THE CBDT CIRCULAR DATED 10/12/2015 (SUPRA). THE LD. DR HAS NOT BROUGHT OUT ANY MATERIAL TO SUGGEST THAT THE CAPTIONED APPEAL IS PROTECTED BY ANY OF TH E CIRCUMSTANCES PRESCRIBED IN PARA-8 OF THE CIRCULAR DATED 10/12/2015 (SUPRA). HE THEREFORE HAS STATED THAT IN VIEW OF THE ABOVE CIRCULAR OF THE CBDT, THE CAPTION ED APPEAL BE TREATED AS WITHDRAWN/NOT PRESSED. HENCE, WITHOUT GOING INTO T HE MERIT OF THE ISSUES RAISED IN THE PRESENT APPEAL, THIS APPEAL IS TREATE D AS DISMISSED AS WITHDRAWN/NOT PRESSED AS ITS FILING BEING IN CONTRA VENTION OF THE CBDT CIRCULAR DATED 10/12/2015(SUPRA) READ WITH SECTION 268A OF THE INCOME TAX ACT. 5. AT THIS STAGE, MR. R.B. VORA, MANAGING DIRECTOR OF THE ASSESSEE COMPANY HAS MADE A STATEMENT VIDE LETTER DATED 28.0 3.16 THAT IN VIEW OF THE DISMISSAL OF THE APPEAL OF THE REVENUE HE DOES NOT WANT TO PURSUE THE APPEAL OF ITA NO.6758/M/2013 M/S. C.N. GANDEVIA CLEARING & FORWARDING AGENTS PVT . LTD. 4 THE ASSESSEE AND THAT HE MAY BE ALLOWED TO WITHDRAW THE APPEAL OF THE ASSESSEE ALSO. 6. THE LD. D.R. HAS ALSO STATED THAT HE HAS NO OBJE CTION IN ACCEPTING THE APPLICATION OF THE ASSESSEE FOR WITHDRAWAL OF THE A PPEAL. 7. IN VIEW OF THIS, THE APPEAL OF THE ASSESSEE IS H EREBY DISMISSED AS WITHDRAWN. 8. IN THE RESULT, BOTH THE ABOVE TITLED CROSS APPEA LS ONE BY THE ASSESSEE AND THE OTHER BY THE REVENUE ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.03.2016. SD/- SD/- (RAMIT KOCHAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 31.03.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.