ITO 19(3)(2), MUMBAI V. SAMIR METAL & TUBES, MUMBAI

ITA 7155/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1744 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 28-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K KRISHNA MURTHY
• Keywords: Tax effect
• Section: 201(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN , AM AND AMARJIT SINGH , JM ./ I.T.A. NO . 5627 / MUM/ 2014 ( / ASSESSMENT YEA R : 200 5 - 06 ) DY.COMMISSIO NER OF INCOME TAX, CENTRAL CIRCLE - 10, ROOM NO.802, 8 TH FLOOR, OLD CGO ANNEXE BUILDING, M K ROAD, MUMBAI - 400020 / VS. M/S K EYSTONE REALTORS PVT.LTD., NATRAJ, M V ROAD JUNCTION, W E HIGHWAY, ANDHERI (E), MUMBAI - 400069 ( / APPELLANT ) . . ( / RESPONDENT ) ./ ./PAN. : AAACK2499Q ./ I.T.A. NO . 7168 / MUM/ 201 4 ( / ASSESSMENT YEA R : 200 5 - 06 ) ASSTT. COMMISSIONER OF INCOME TAX - 19(1), 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI - 400 007 / VS. SHRI ALY R ALLANA, FLAT NO.10B - II, THE GREAT EASTERN ROYALE, 33 , BELASIS ROAD, TARDEO, MUMBAI - 400034 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAHPA9588J ./ I.T.A. NO . 3357 / MUM / 201 5 ( / ASSESSMENT YEA R : 200 8 - 09 ) INCOME TAX OFFICER - 29(2)(1), ROOM NO.201, 2 ND FLOOR, C - 10, PRATYAKSHAKAR BHAVAN, BANDRA - KURLA - COMPLEX, BANDRA (E), MUMBAI - 400051 / VS. SHRI KANAHAIYALAL S SHAH 706, MOUNTVIEW YOGI HILL, MULUND (W), MUMBAI - 400080. ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAFPS8481C ITA NO. 5627/MUM/2014 AND OTHER SIX CASES 2 ./ I.T.A. NO . 6156 / MUM/ 2014 ( / ASSESSMENT YEA R : 20 08 - 09 ) INCOME TAX OFFICER - 25(1)(3), ROOM NO.306, 3 RD FLOOR, C - 10, PRATYAKSHAKAR BHAVAN, BANDRA - KURLA - COMPLEX, BANDRA (E), MUMBAI - 400051 / VS. M/S ANOOPKUMAR D RAIMALANI - HUF, G - 85, STAR APARTMENT, S V ROAD, BORIVALI (W), MUMBAI - 400092 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAEHAO886J ./ I.T.A. NO . 7172 / MUM/ 201 4 ( / ASSESSMENT YEA R : 201 0 - 11 ) ASSTT. COMMISSIONER OF INCOME TAX 16(1), ROOM NO.4 39 , AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 / VS. SHRI HR ITHIK ROSHAN , B - 27, COMMERCE CENTRE, OFF NEW LINK ROAD, ANDHERI (W), MUMBAI - 40005 3 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AABPN2790F ./ I.T.A. NO . 5936 / MUM/ 201 4 ( / ASSESSMENT YEA R : 20 11 - 12) INCOME TAX OFFICER (OSD) (TDS) - 1(1), ROOM NO.809, K G MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD, MUMBAI - 400002 / VS. M/S HYPERCITY RETAIL INDIA LIMITED., PARADIGM, A WING, 1 ST FLOOR, MINDSPACE, MALAD LINK ROAD, MALAD (W), MUMBAI - 400064 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AACCR8461K ITA NO. 5627/MUM/2014 AND OTHER SIX CASES 3 ./ I.T.A. NO . 7155 / MUM/ 201 4 ( / ASSESSMENT YEA R : 2011 - 12) INCOME TAX OFFICER - 19(3)(2), MATRU MANDIR, TARDEO ROAD, MUMBAI - 400007 / VS. M/S SAMIR METAL AND TUBES, 6, AMBIKA NIWAS, 1 ST FLOOR, KHETWADI 5 TH LANE, MUMBAI - 400004 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAAFS3355A / REVENUE BY SHRI K KRISHNAMURTHY / ASSESSEE BY NONE / DATE OF HEARING : 30 .12.2015 / DATE OF PRONOUNCEMENT: 30.12. 201 5 / O R D E R P ER B ENCH: ALL THESE APPEALS FI LED AT THE INSTANCE OF THE REVENUE ARE DIRECTED AGAINST THE SEPARATE ORDERS PASSED BY LEARNED CIT(A) IN THEIR RESPECTIVE HANDS. 2. AT THE TIME OF HEARING, IT WAS NOTICED THAT THE TAX EFFECT INVOLVED IN ALL THESE APPEALS ON THE DISPUTED ISSUES IS LESS THAN RS.10.00 LACS. FOR THE SAKE OF CONVENIENCE, WE TABULATE BELOW THE RELEVANT DETAILS: - S.NO. NAME OF ASSESSEE AMOUNT IN DISPUTE(FOR QUANTUM APPEAL ) IN RS. PENALTY DELETED OR REDUCED BY LD CIT(A) IN RS. 1 M/S KEYSTONE REALTORS PVT.LTD., , 5 , 970 2 SHRI ALY R ALLANA, 5,74,447 (PENALTY U/S 271(1)(C). ITA NO. 5627/MUM/2014 AND OTHER SIX CASES 4 3 SHRI KANAHAIYALAL S SHAH 26,26,415 4 M/S ANOOPKUMAR D RAIMALANI - HUF, 18,49,565 5 SHRI HRITHIK ROSHAN, 16,07,173 6 M/S HYPERCITY RETAIL INDIA LIMITED 5 , 01 , 976 (INTEREST U/S 201(1) AND 201(1A) 7 M/S SAMIR METAL AND TUBES, 23,89,866 3 . WE NOTICE THAT THE REVENUE IS CONTE STING THE DECISION OF LD CIT(A) IN GRANTING RELIEF TO THE EXTENT STATED ABOVE AND HENCE THE TAX EFFECT INVOLVED ON THE ABOVE SAID DISPUTED AMOUNT S WORKS OUT TO LESS THAN RS .10 LAKHS IN EACH OF THE CASES REFERRED ABOVE . RECENTLY THE CBDT HAS ISSUED A CIRCULAR NO.21/2015 DATED 10.12.2015 PRESCRIBING NEW MONETARY LIMITS FOR PREFERRING APPEALS AGAINST THE ORDERS PASSED BY LD CIT(A) BEFORE THE TRIBUNAL. THE RELEVANT PORTION OF THE CIRCULAR CITED ABOVE READS AS UNDER: F NO 279/MISC. 142/2007 - ITJ ( PT) GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD DIRECT TAXES CIRCULAR NO. 21/2015 NEW DELHI THE 10TH DECEMBER, 2015 SUB : REVISION OF MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE SUPR EME COURT - MEASURES FOR REDUCING LITIGATION REG REFERENCE IS INVITED TO BOARD'S INSTRUCTION NO 5/2014 DATED 10.07.2014 WHEREI N MONETARY LIMITS AND OTHER CONDITIONS FOR FILING DEPARTMENTAL APPEALS (IN INCOME - TAX MATTERS) BEFORE APPELLATE TRIBUNAL AND H IGH COURTS AND SLP BEFORE THE SUPREME COURT WERE SPECIFIED. 2 . IN SUPERSESSION OF THE ABOVE INSTRUCTION, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE APPELLATE ITA NO. 5627/MUM/2014 AND OTHER SIX CASES 5 TRIBUNAL AND HIGH COURTS AND SLP BEFORE THE S UPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S NO APPEALS IN INCOME - TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/ - 2 BEFORE HIGH COURT 20,00,000/ - 3 BEFORE SUPREME COURT 25,00,000/ - IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS P RESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL IN COME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'DISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST IT SELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDE R 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 ADDIT IONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 5. . 6 7. 8. . 9. .. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED . APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHE N SUCH APPEAL WAS FILED. 11. .. ITA NO. 5627/MUM/2014 AND OTHER SIX CASES 6 IT CAN BE NOTICED THAT THE CBDT HAS FURTHER CLARIFIED THAT THIS NEW CIRCULAR/INSTRUCTION SHALL APPLY RETROSPECTIVELY, I.E., EVEN TO THE PENDING APPEALS. IT IS ALSO STATED THAT THE QUANTUM OF PENALTY DELETED OR REDUCED S HALL BE CONSIDERED FOR DETERMINING THE MONETARY LIMITS. IT IS FURTHER STATED THAT, IN CASE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THEN THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. 4 . IT IS WELL SETTLED PROPOSITION THAT THE CIRCULARS ISSU ED BY THE CBDT ARE BINDING ON THE INCOME TAX AUTHORITIES. FOR THIS PROPOSITION, ONE MAY GAINFULLY REFER TO THE DECISIONS RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF AZADI BACHAO ANDOLAN (2003)(177 TAXATION 775) AND PRADIP J MEHTA VS. CIT (2008)(3 00 ITR 231). HENCE, THE LATEST CIRCULAR ISSUED BY THE CBDT (REFERRED SUPRA) IS BINDING ON THE INCOME TAX AUTHORITIES. ACCORDINGLY, WE FIND MERIT IN THE SUBMISSIONS OF LD A.R THAT THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE, SINCE TAX EFFECT INVOLVED I N THIS APPEAL IS LESS THAN RS.10 LAKHS. ACCORDINGLY, WE DISMISS THE APPEAL FILED BY THE REVENUE. 5 . IN THE RESULT, ALL THE APPEAL S OF THE REVENUE ARE DISMISSED. PRONOUNCED ACCORDINGLY ON 30 TH DECEMBER 201 5 . 30 T H DECEMBER 201 5 SD SD ( AMARJIT SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 30 TH DECEMBER , 201 5 . . . ./ SRL , SR. PS ITA NO. 5627/MUM/2014 AND OTHER SIX CASES 7 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCE RNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI