ITO 23 (3)(2) , MUMBAI V. SHANKESHWAR ENTERPRISES, MUMBAI

ITA 7727/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5469 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 16-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Keywords: Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VIRTUAL COURT G , BENCH MUMBAI BEFORE SHRI JUSTICE P P BHATT, PRESIDENT & SHRI M. BALAGANESH, AM ITA NO. 7727 /MUM/201 9 ( ASSESSMENT YEAR : 200 6 - 0 7 ) ITA NO. 7728 /MUM/201 9 ( ASSESSMENT YEAR : 200 8 - 09 ) ITA NO. 7730 /MUM/201 9 ( ASSESSMENT YEAR : 2010 - 11 ) & ITA NO. 425/MUM/2020 ( ASSESSMENT YEAR : 2011 - 12 ) INCOME TAX OFFICER - 23(3)(2) ROOM NO.119, 1 ST FLOOR MATRU MANDIR, GRANT ROAD TARDEO ROAD, MUMBAI 400 007 VS. M/S. SHANKESHWAR ENTERPRISES 107, A - WING, RIZVI CHAMBER, HILL ROAD, BANDRA (W) MUMBAI 400 050 PAN/GIR NO. ACNFS1957P (APPELLANT ) .. (RESPONDENT ) REVENUE BY SHRI V. VINODKUMAR ASSESSEE BY SHRI ABHISHEK JHUNJHUNWALA DATE OF HEARING 15 / 09 /2020 DATE OF PRONOUNCEMENT 15 / 09 /2 020 ITA NO . 7727/MUM/2019 AND OTHER APPEALS M/S. S HANKESHWAR ENTERPRISES 2 / O R D E R PER BENCH : TH ESE APPEAL S IN ITA NO. 7727/MUM/2019, 7728/MUM/2019, 7730/MUM/2019 & ITA NO.425/MUM/2019 FOR A.Y. 2 006 - 07, 2008 - 09, 2010 - 11 & 2011 - 12 ARISE OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 3 4 , MUMBAI IN APPEA L NO. CIT(A) - 3 4 /IT O - 23(3)(2)/IT - 10894/14 - 15, CIT(A) - 34/23(3)(2)/IT - 10164/16 - 17, CIT(A) - 34/23(3)(2)/IT - 10329/16 - 17,CIT(A) - 34/23(3)(2)/IT - 10298/17 - 18 , CIT(A) - 34/23(3)(2)/IT - 10370/18 - 19 RESPECTIVELY DATED 12/09/2019 & 18/10/2019 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINA FTER REFERRED TO AS ACT) DATED 29/03/2014, 17/03/2016 & 19/12/2017 RESPECTIVELY BY THE INCOME TAX OFFICER 19(3)(4), ITO - 23(3)(2), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). 2. BOTH THE PARTIES BE FORE US MUTUALLY AGREED THAT THESE REVENUE APPEAL S ARE TO BE DISMISSED AS NOT MAINTAINABLE IN VIEW OF THE RECENT CIRCULAR ISSUED BY THE CBDT DATED 08/08/2019 WHEREIN THE REVENUE HAS BEEN DIRECTED TO WITHDRAW THE APPEAL PREFE RRED BY IT BEFORE THE TRIBUNAL IF THE TAX EFFECT ON THE DISPUTED ISSUES IS LESS THAN OR EQUAL TO RS.50,00,000/ - . IT IS WELL SETTLED THAT THIS CIRCULAR IS BINDING ON THE REVENUE AUTHORITIES. 3. ASSESSEE SUBMI TTED THE FOLLOWING CALCULATION S FOR THE A.Y.200 6 - 07, 2008 - 09, 2010 - 11 & 2011 - 12. ITA NO . 7727/MUM/2019 AND OTHER APPEALS M/S. S HANKESHWAR ENTERPRISES 3 M/S. SHANKESHWAR ENTERPRISES AY: 2006 - 07 DISPUTED ISSUES INVOLVED IN THE DEPARTMENT'S APPEAL TOTAL INCOME AS PER ASSESSMENT ORDER U/S. 143(3) RS.14,11,718/ - LESS : ADDITIONS DELETED BY CIT(A) ORDER DATED 12 /09/2019 (RS.5,71,718+RS.5,00,000) (RS.10,71,718/ - ) ---------------- TOTAL INCOME AFTER CIT(A) ORDER RS. 3,40,000/ - ========= WORKING OF TAX ON DISPUTED ISSUES DISPUTED ISSUES RS.5,71,718/ - =========== INCOME TAX ON DISPUTED ISSUES @ 30% RS. 1,71,515/ - ADD: SURCHARGE @ 10% RS. 17,152/ - ADD: EDUCATION CESS @ 2% RS. 3,773/ - ----------------------------- TAX ON DISPUTED ISSUES RS. 1,92,440/ - ============== M/S. SHANKESHWAR ENTERPRISES AY: 2008 - 09 DISPUTED ISSUES INVOLVED IN THE DEPARTMENT'S APPEAL TOTAL INCOME AS PER ASSESSMENT ORDER U/S . 143(3) RS. 17,00,000/ - LESS : ADDITIONS DELETED BY CIT(A) ORDER DATED (RS.L 7 ,00,000 / - ) 12/09/2019 ------------------- TOTAL INCOME AFTER CIT(A) ORDER NIL =========== WORKING OF TAX ON DISPUTED ISSUES DISPUTED ISSUES . . RS. 17,00,000/ - ============ INCOME TAX ON DISPUTED ISSUES @ 30% RS. 5,10,000/ - ADD : SURCHARGE @ 10% NIL ADD: EDUCATION CESS @ 3% RS. 15,300/ - --------------------- TAX ON DISPUTED ISSUES RS. 5,25,300/ - =========== ITA NO . 7727/MUM/2019 AND OTHER APPEALS M/S. S HANKESHWAR ENTERPRISES 4 M/S. SHANKESHWAR ENTERPRISES AY: 2010 - 11 DISPUTED ISSUES INVOLVED IN THE DEPARTMENT'S APPEAL TOTAL INCOME AS PER ASSESSMENT ORDER U/S. 143(3) RS.81,12,000/ - LESS : ADDITIONS DELETED BY CIT (A) ORDER DATED 12/09/2019 RS.81,12,000/ - ----------- TOTAL INCOME AFTER C I T(A] ORDER NIL ============ WORKING OF TAX ON DISPUTED ISSUES DISPUTED ISSUES RS.81,12,000/ - ============ INCOME TAX ON DISPUTED ISSUES @ 30% RS.24,33,600/ - ADD : SURCHARGE @ 10% NIL ADD : EDUCATION CESS @ 3% RS. 73,008/ - --------------------- TAX ON DISPUTED ISSUES RS.25,06,608/ - ============ M/S. SHANKESHWAR ENTERPRISES AY: 2011 - 12 DISPUTED ISSUES INVOLVED IN THE D EPARTMENT'S APPEAL TOTAL INCOME AS PER ASSESSMENT ORDER U/S. 143(3) RS.74,65,500/ - LESS : ADDITIONS DELETED BY CIT(A) ORDER DATED (RS. 74,65,500/) 28/10/2019 ---------------------- TOT AL INCOME AFTER CIT(A) ORDER NIL ============== WORKING OF TAX ON DISPUTED ISSUES DISPUTED ISSUES RS.74,65,500/ - ============== INCOME TAX ON DISPUTED ISSUES @ 30% RS.22,39,650/ - ADD: SURCHARGE@ 10% NIL ADD : EDUCATION CESS @ 3% 67,190/ - ITA NO . 7727/MUM/2019 AND OTHER APPEALS M/S. S HANKESHWAR ENTERPRISES 5 -------------------- TAX ON DISPUTED ISSUES RS.23,06,840/ - ========== 4 . RESPECTFULLY FOLLOWING THE SAID CIRCULAR, THE APPEALS FILED BY THE REVENUE ARE DISMISSED AS NOT MAINTAINABLE. 5 . INCASE, IF THE REVENUE IS ABLE TO P ROVIDE EVIDENCE THAT THE CASE S FALL UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE CIRCULAR ISSUED BY THE CBDT, THEN THE REVENUE MAY PREFER MISCELLANEOUS APPLICATION FOR RECALLING OF THIS ORDER, IF THEY SO DESIRE, IN WHICH CIRCUMSTANCE , TH ESE ORDER S SHALL BE RECALLED BY THIS TRIBUNAL. 6 . IN THE RESULT, APPEAL S FILED BY THE REVENUE ARE DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN OPEN COURT ON 15/09/2020 . SD/ - ( JUSTICE P P B HATT ) SD/ - (M.BALAGANESH) PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 15 / 09 / 2020 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// ITA NO . 7727/MUM/2019 AND OTHER APPEALS M/S. S HANKESHWAR ENTERPRISES 6