ITO 1(1)(3), MUMBAI V. ELITE THEATRE & INVESTMENTS CO. P.LTD, MUMBAI

ITA 8033/MUM/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71669 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 19-11-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 22-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SAHU
• Assessee Lawyers: M C MATHUR
• Keywords: Question of law; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E , MUMBAI BEFORE SHRI D. KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 8033/M/10 ASSESSMENT YEAR: 2007 - 08 ITO - 1(1)(3), ROOM NO.579, AAYAKAR BHAVAN, MUMBAI - 400020 VS. M/S. ELITE THEATRE & INVESTMENTS CO. PVT. LTD. NEW EMPIRE CINEMA BUILDING, MURZBAN ROAD, FORT, MUMBAI 400 001. PAN: AAACE4884B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.C. MATHUR REVENUE BY : SHRI R.K. SAHU DATE OF HEARING : 19.11.13 DATE OF PRONOUNCEMENT : 19.11.13 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL IS PREFERRED BY THE REVENUE CHALLENGING THE IMPUGNED ORDER DATED 30.07.10 , PASSED BY THE LEARNED COM MISSIONER (APPEALS, FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) FOR ASSESSMENT YEAR 200 7 0 8 . 2 . BEFORE US, AS ADMITTED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE, THE DISPUTED ADDITION IN THIS CASE IS RS. 7,43,595/ - AND, THEREFORE, THE TAX EFFECT IS ADMITTEDLY LESS THAN RS.3,00,000/ - . 3 . AFTER HEARING THE LEARNED R EPRESENTATIVE S OF BOTH THE PARTIES WE FIND THAT AS PER CBDT INSTRUCTION NO.3 OF 2011, DATED 9 TH FEBRUARY 2011, THE APPEAL ITA NO. 8033/M/10 M/S. ELITE THEATRE & INVESTMENTS CO. PVT. LTD. 2 BEFORE THE APP ELLATE TRIBUNAL CAN BE FILED BY THE REVENUE, WHEN THE TAX EFFECT EXCEEDS THE MONITORY LIMIT OF RS.3,00,000/ - . 4 . SO FAR THE APPLICABILITY OF CIRCULAR OF 2011 AS APPLICABLE TO THE APPEALS FILED EARLIER IS CONCERNED, T HE HON'BLE BOMBAY HIGH COURT IN THE CASE O F CIT V/S MADHUKAR K. INAMDAR (HUF) , [2009] 318 ITR 149 (BOM.) WHILE DEALING WITH THE QUESTION OF APPLICABILITY OF A SIMILAR TYPE OF CIRCULAR OF 2008 , HAS OBSERVED AS UNDER : - THE CIRCULAR DATED MAY 15, 2008 IN GENERAL AND PARAGRAPH (5) THEREOF IN PART ICULAR LAY DOWN THAT EVEN IF THE SAME ISSUE, IN RESPECT OF THE SAME ASSESSEE, FOR OTHER ASSESSMENT YEARS IS INVOLVED, THE DEPARTMENT SHOULD NOT FILE APPEAL, IF THE TAX EFFECT IS LESS THAN ` 4 LAKHS. IN OTHER WORDS, EVEN IF THE QUESTION OF LAW IS OF RECURRI NG NATURE, THE REVENUE IS NOT EXPECTED TO FILE APPEALS IN SUCH CASES, IF THE TAX IMPACT IS LESS THAN THE MONETARY LIMIT FIXED BY THE CENTRAL BOARD OF DIRECT TAXES. THE BOARD HAS ALSO ISSUED A CIRCULAR ON JUNE 5, 2007, DIRECTING THE DEPARTMENT TO EXAMINE AL L APPEALS PENDING BEFORE THE COURT ON A CASE TO CASE BASIS WITH FURTHER DIRECTION TO WITHDRAW CASES WHEREIN THE CRITERIA OF MONETARY LIMITS AS PER THE PREVAILING INSTRUCTION ARE NOT SATISFIED, UNLESS THE QUESTION OF LAW INVOLVED OR RAISED IN APPEAL OR REFE RRED TO THE HIGH COURT FOR OPINION IS OF A RECURRING NATURE REQUIRED TO BE SETTLED BY THE HIGHER COURT. THE CIRCULAR MAKES IT CLEAR THAT ON THE DATE OF ISSUANCE OF THE CIRCULAR, PREVAILING INSTRUCTIONS FIXING MONETARY LIMIT WILL HOLD GOOD EVEN FOR PENDING CASES. THE CIRCULAR DATED MAY 15, 2008 WOULD BE APPLICABLE TO PENDING CASES REQUIRING THE DEPARTMENT TO WITHDRAW CASES WHEREIN THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS. THE CIRCULAR DATED MAY 15, 2008, WOULD BE APPLICABLE TO CASES PENDING BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL AND IT IS BINDING ON THE REVENUE. 5 . SIMILAR VIEW WAS TAKEN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE JUDGMENT IN CIT V/S PITHWA ENGINEERING WORKS, [2005] 276 ITR 519 (BOM.), AND THE HON'BLE DELHI HIGH COURT IN M/S. P.S. JAIN & CO., [2011] 335 ITR 591 (DEL.). APPLYING THE PROPOSITIONS LAID DOWN IN THESE CASE LAWS TO THE FACTS OF THE PRESENT CASE, THE REVENUES APPEAL IS LIABLE TO BE DISMISSED. ITA NO. 8033/M/10 M/S. ELITE THEATRE & INVESTMENTS CO. PVT. LTD. 3 6 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.11. 2013. SD/ - SD/ - ( D. KARUNAKARA RAO ) ( SANJAY GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 19.11. 2013. * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.