DCIT 3(2)(1), MUMBAI V. NARESH CHANDRA OBEROI, MUMBAI

ITA 770/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7876 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 12-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GOVIND MEHTA
• Keywords: Audit objection; Tax effect
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.770/M/2016 ASSESSMENT YEAR: 2011-12 DCIT 3(2)(2), R.NO.674, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 VS. MR. NARESH CHANDRA OBERAI, 181, B JOLLY MAKER TOWER A, NO.1, 18 TH FLOOR, CUFFE PARADE, MUMBAI 400005 PAN: AAEPO2381A (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI GOVIND MEHTA, A.R. REVENUE BY : SHRI VIJAY MEHTA, D.R. DATE OF HEARING : 04.12.2017 DATE OF PRONOUNCEMENT : 27.12.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVENU E AGAINST THE ORDER DATED 30.11.2015 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2011-12. 2. AT THE OUTSET, THE LD. A.R. HAS SUBMITTED THAT T AX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS. 10 LACS AN D THE CBDT CIRCULAR NO. 21/2015 IS APPLICABLE TO THIS APPEAL, HENCE, THIS APPEAL BE DISMISSED AS NOT PRESSED IN TERMS OF CBDT CIRCUL AR NO 21/2015 DATED 10/12/2015. ITA NO.770/M/2016 MR. NARESH CHANDRA OBERAI 2 3. THE CBDT VIDE CIRCULAR DATED 10/12/2015 (SUPRA) HAS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DE PARTMENT BEFORE THE TRIBUNAL AND FURTHER VIDE PARA 10 OF THE SAID C IRCULAR IT HAS BEEN CLARIFIED THAT SAID CIRCULAR IS APPLICABLE RETROSPE CTIVELY TO THE PENDING 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 (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 ITA NO.770/M/2016 MR. NARESH CHANDRA OBERAI 3 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 SPECIF IED IN THE CBDT CIRCULAR DATED 10/12/2015 (SUPRA). THE LD. DR HAS N OT BROUGHT OUT ANY MATERIAL TO SUGGEST THAT THE CAPTIONED APPEAL I S PROTECTED BY ANY OF THE CIRCUMSTANCES PRESCRIBED IN PARA-8 OF THE CI RCULAR DATED 10/12/2015 (SUPRA). HE THEREFORE HAS STATED THAT IN VIEW OF THE ABOVE CIRCULAR OF THE CBDT, THE CAPTIONED APPEAL BE TREAT ED AS WITHDRAWN/NOT PRESSED. HENCE, WITHOUT GOING INTO T HE MERIT OF THE ISSUES RAISED IN THE PRESENT APPEAL, THIS APPEAL IS TREATED AS DISMISSED AS WITHDRAWN/NOT PRESSED AS ITS FILING BEING IN CON TRAVENTION OF THE CBDT CIRCULAR DATED 10/12/2015(SUPRA) READ WITH SEC TION 268A OF THE INCOME TAX ACT. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27.12.2017. SD/- SD/- (G. MANJUNATHA) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 27.12.2017. * KISHORE, SR. P.S. ITA NO.770/M/2016 MR. NARESH CHANDRA OBERAI 4 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.