ACIT CIR 3(3), MUMBAI V. S.S. VENTURE LTD, MUMBAI

ITA 7459/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8086 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 15-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 17-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARAMAND J
• Keywords: Tax effect

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI .., ! , ' , # BEFORE SHRI I.P.BANSAL, JM AND SHRI RAJENDRA, AM ITA NO.7459 /MUM/2012 (A.Y. 2009-10) THE ACIT, CIR. 3(3), ROOM NO.609, 6 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400 020 M/S. S.S. VENTURE LTD., 302, VIBGYOR TOWERS, 3 RD FLOOR, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 51 PAN:AALCS 2972D ( $% / // / APPELLANT) ' ' ' ' / VS. ( ()$%/ RESPONDENT) $% * + * + * + * + /APPELLANT BY : SHRI PARAMAND J. ()$% * + * + * + * + /RESPONDENT BY : NONE ' * ,-' / / / / DATE OF HEARING : 15.09.2014 ./0 * ,-' / DATE OF PRONOUNCEMENT : 15.09.2014 1 1 1 1 / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-7, MUMBAI 16/08/2012 FO R ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: 1.WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN ALLOWING THE PRIOR PERIOD EXPENSE S OF RS.12,04,771/- HOLDING THAT SINCE, THE TAX HAS BEEN DEDUCTED BY THE ASSESS EE DURING THE YEAR UNDER CONSIDERATION, THE SAME IS ALLOWABLE WITHOUT APPREC IATING THE FACT THAT THE ASSESSEE HAS SHOWN THE SAID PAYMENT AS PAYABLE IN T HE EALIER YEARS IN ITS BOOKS OF ACCOUNTS. 2. .WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN ALLOWING THE PRIOR PERIOD EXPENSES OF RS.12,04,771/- RELYING ON THE DECISION OF DELHI HIGH COURT IN THE CASE OF SMCC CONSTRUCTION INDIA WITHOUT APPRECIATING THE FACT THAT THE FACTS IN ABOVE REFERRED CASE ARE DISTINGUISHABLE TO THE FACTS OF THE CASE. 2. AS IT CAN BE SEEN FROM THE GROUNDS OF APPEAL TH E DELETION WHICH HAS BEEN CONTESTED BY THE REVENUE IS A SUM OF RS.12,0 4,077/- ON WHICH TAX EFFECT APPARENTLY WOULD BE LESS THAN RS.4.00 LACS. HOWEVER, LD. DR PLEADED ITA NO.7459 /MUM/2012 (A.Y. 2009-10) 2 THAT THE APPEAL COULD NOT BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT AS THIS APPEAL WAS FILED PRIOR TO ISSUE OF INSTRUCTION BY CBDT DATED 10/07/2014 ISSUED UNDER SECTION 268A OF THE INCOME TAX ACT, 19 61 (INSTRUCTION NO.5/2014 (F.NO.279/MISC.142/2007-ITJ(PT)] VIDE WHI CH THE TAX EFFECT LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL WAS ENHAN CED FROM RS.3.00 LACS TO RS.4.00 LACS. 3. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR. HO WEVER, ACCORDING TO FOLLOWING DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT, SUCH NOTIFICATIONS ISSUED UNDER SECTION 268A WOULD BE APPLICABLE EVEN TO THE APPEALS FILED BEFORE ISSUE OF THE NOTIFICATION IF THE LIMIT IS E NHANCED: 1. IN THE CASE OF CIT VS. SMT. VIJAYA KAVEKAR (201 3 30 TAXMANN.COM 412) IT WAS HELD AS UNDER: SECTION 260A, READ WITH SECTION 268A, OF THE INCOME -TAX ACT, 1961 - HIGH COURT - APPEALS TO - TAX EFFECT - WHETHER INST RUCTION NO. 3 OF 2011, DATED 9-2-2011, SPECIFYING MONETARY LIMIT OF RS. 10 LAKHS FOR MAINTAINABILITY OF APPEAL BEFORE HIGH COURT IS APPL ICABLE ON PENDING APPEALS AS WELL - HELD, YES - WHETHER, THER EFORE, WHERE TAX EFFECT IN REVENUES APPEALS WAS LESS THAN RS. 10 LA KHS WHICH WAS FILED EVEN PRIOR TO ISSUE OF INSTRUCTION DATED 9-2- 2011, SAME WAS TO BE DISMISSED BEING NON-MAINTAINABLE - HELD, YES [IN FAVOUR OF ASSESSEE ] 2. IN THE CASE OF CIT VS. MADHUKAR IMANDAR (2009 1 85 TAXMAN 101] IT WAS HELD AS UNDER: SECTION 268A, READ WITH SECTION 119, OF THE INCOME- TAX ACT, 1961 - APPEAL OR APPLICATION FOR REFERENCE - FILING OF, BY INCOME-TAX AUTHORITY - WHETHER CIRCULAR/INCOME-TAX INSTRUCTION NO. 5 OF 2008, DATED 15-5-2008 ISSUED BY CBDT DIRECTING INCOME-TAX AUTHORITIES NOT TO FILE APPEALS IF TAX EFFECT IS LESS THAN RS. 4 LAKHS WOULD BE APPLICABLE TO CASES PENDING BEFORE HIGH COURT AS ON 15-5-2008 EITHER FOR ADMISSION OR FOR FINAL DISPOSAL, EVEN TH OUGH SAID APPEALS AND/OR PETITIONS WERE FILED BEFORE HIGH COURT PRIOR TO 15-5-2008 - HELD, YES 4. IN VIEW OF THE SITUATION WE DISMISS THE APPEAL FILED BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT AS PER AFOREMENTIONED IN STRUCTION ISSUED BY CBDT ITA NO.7459 /MUM/2012 (A.Y. 2009-10) 3 DATED 10.07.2014 IN WHICH TAX EFFECT LIMIT IS PRE SCRIBED AT RS.4.00 LACS AND ALSO IN VIEW OF AFOREMENTIONED DECISIONS OF HONB LE BOMBAY HIGH COURT. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15.09. 2 014. 1 * ./0 2'3 15.09.2014 / * : SD/- SD/- (RAJENDRA) (I.P.BANSAL) ' ' ' ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 2' DATED : 15 SEPT. 2014. VM. 1 * (,; < ;0, 1 * (,; < ;0, 1 * (,; < ;0, 1 * (,; < ;0,/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. ()$% / THE RESPONDENT. 3. =() / THE CIT, MUMBAI. 4. = / CIT(A)-13, MUMBAI 5. ;@: (,' , , / DR, ITAT, MUMBAI 6. :A B / GUARD FILE. 1' 1' 1' 1' / BY ORDER, );, (, //TRUE COPY// C CC C/ // /D D D D (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI