DCIT 22(2), NAVI MUMBAI V. VENKATESH SANJEEV KAMATH, MUMBAI

ITA 7727/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3950 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 28-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A DYANI
• Assessee Lawyers: VIJAY C KOTHARI
• Keywords: Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' F ' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO. 7727 /MUM/201 2 (ASSESSMENT YEAR: 2009 - 10 ) DCIT, CIRCLE - 22(2) VS. SHRI VENKATESH SANJEEV KAMATH TOWER NO. 6, 4 TH FLOOR, VASHI RLY. STATION BLDG. COMPLEX VASHI, NAVI MUMBAI 304, SWASTIK CHAMBERS, SION TROMBAY RD., CHEMBUR (E) MUMBAI 400041 PAN - AFPPK5271D APPELLANT RESPONDENT APPELLANT BY: SHRI R.A. DYANI RESPONDENT BY: SHRI VIJAY C. KOTHARI DATE OF HEARING: 03 .05 .2016 DATE OF PRONOUNCEMENT: 03 .0 5 .2016 O R D E R PER JASON P. BOAZ, A.M . THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 25.12.2012 PASSED THE CIT(A) - 33, MUMBAI IN RESPECT OF THE ORDER OF ASSESSMENT PASSE D UNDER SECTION 143(3) FOR A.Y. 2009 - 10 ON THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN ALLOWING THE ASSE S SEE'S APPEAL WITH REGARD TO DISALLOWANCE OF RS.18,92,931/ - U/S 40(A)(IA) OF THE ACT MADE BY THE AO WITH REGARD TO NON - DEDUCTION OF TDS ON FREIGHT CHARGES PAID TO NON - RESIDENT SHIPPING COMPANY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT M/S.EMU LINES PVT. LTD HAS BEEN COVERED B Y THE TOWER DEDUCTION CERTIFICATE ISSUED BY THE DEPARTMENT EVEN THOUGH THE CERTIFICATE HAS NOT MENTIONED THE NAME OF M/S. EMU LINES PVT. LTD. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN ALLOWING THE ASSESSEE'S APPEAL WI TH REGARD TO DISALLOWANCE OF RS.15,40,906/ - U/S.40(A)(IA) OF THE ACT MADE BY THE AO WITH REGARD TO PAYMENT OF EXPORT COMMISSION TO NON - RESIDENT AGENTS. IT A NO. 7727/MUM/2012 SHRI VENKATESH SANJEEV KAMATH 2 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THA T NO INCOME IS ACCRUED OR ARISING TO THE NON - RESIDENT TO WHOM THE EXPORT COMMISSION HAS BEEN PAID AND HENCE, NO DISALLOWANCE U/S. 40(A)(IA) OF THE ACT IS NECESSARY. 5 THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THA T OF THE ASSESSING OFFICER BE RESTORED. 6. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2 . AT THE OUTSET, IT IS NOTICED THAT THE DISPUTED ISSUE IS ONLY FOR ` 17,55,318/ - I.E. ` 15,40,906 + ` 2,14,412) AND THE TAX EFFECT ON THIS AMOUNT IS BELOW THE MONETARY LIMIT OF ` 10 LAKHS. AS PER THE LATEST CBDT CIRCULAR NO. 21 OF 2015 DATED 10 TH DECEMBER, 2015, NEW GUIDELINES OF MONETARY LIMIT FOR FILING OF APPEALS BY THE DEPARTMENT HAS BEEN ISSUED, WHEREB Y THE TAX EFFECT FOR FILING OF APPEAL BEFORE THE ITAT HAS BEEN PRESCRIBED AT ` 10 LAKHS. IN THE SAID CIRCULAR, IT HAS BEEN SPECIFICALLY CLARIFIED THAT THE SAID INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS. ACCORDINGLY, THE APPEAL FILED BY REVENUE IS NOT MAINTAINABLE AND IS DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MAY , 2016 . SD/ - SD/ - ( SANDEEP GOSAIN ) ( JASON P. BOAZ ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 3 RD MAY , 2016 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) - 33 , MUMBAI 4 . THE CIT , 22 , MUMBAI 5 . THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.