ACIT 25(3), MUMBAI V. MANSI CONSTRUCTION, MUMBAI

ITA 8144/MUM/2010

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8179 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-10-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: AJIT SHETTY
• Keywords: Depreciation; Additional depreciation; Additional evidence; Tax effect

Judgement Text

B , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI !' , # $% & & & & , , $% ' BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI VIVEK VARMA, JUDICIAL MEMBER . : . : . : . : 8144 / // / / // / 2010, + 2007-08 ITA NO. : 8144/MUM/2010 , AY 2007-08 ACIT -25(3), C-11, R. NO. 308, PRATYAKSH KAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (EAST), MUMBAI -400 051 VS M/S MANSI CONSTRUCTION, 44/A, GOVT. INDL. ESTATE, OPP GANESH HOTEL, KANDIVALI (WEST), MUMBAI -400 067 %, # .: PAN: AABFM 0242 R ,- (APPELLANT) ./,- (RESPONDENT) APPELLANT BY : MR LOVE KUMAR RESPONDENT BY : MR AJIT SHETTY 012# /DATE OF HEARING : 16-10-2014 34+ 012#/ DATE OF PRONOUNCEMENT: 16-10-2014 $ 5 $ 5 $ 5 $ 5 O R D E R , . . . . . .. . PER VIVEK VARMA, J.M. : INSTANT APPEAL HAS BEEN FILED BY THE DEPARTMENT AGA INST THE ORDER OF THE CIT(A) 35, MUMBAI, DATED 09.09.2010, W HEREIN, THE FOLLOWING GROUNDS HAVE BEEN TAKEN: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS . 12,45,612/- ON ACCOUNT OF CEASED LIABILITY WITHOUT APPRECIATING THE FACT THAT NO TRANSACTIONS HAVE BEEN MADE BY THE ASSESSEE WITH THE CREDITORS AND ASSESSEE DID NOT FURNISH CONFIRMATION FROM THEM. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ACCEPTED ADDITIONAL EVIDENCE WIT HOUT REMANDING THE MATTER BACK TO THE ASSESSING OFFICER I N CONTRAVENTION OF RULE 46A OF THE I.T. RULES. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CI T(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND. M/S MANSI CONSTRUCTION ITA 8144/M/2010 2 2. AT THE TIME OF HEARING, THE AR POINTED OUT THE T AX EFFECT ON THE INCOME OF RS. 12,45,612/- IMPUGNED IN THE APPEAL IS RS. 3,84,895/-. THE AR PLACED BEFORE US THE DECISION OF COORDINATE BENCH AT MUMBAI IN ITA NO. 3364/MUM/2013, WHEREIN THE COORDINATE BE NCH HELD, '2.1 AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD . AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT TH E TAX EFFECT OF THE REVENUES APPEAL IS AT RS. 3,31 LACS, I.E., BE LOW THE EXTANT MONETARY LIMIT OF RS. 4 LACS, AS PRESCRIBED BY THE B OARD U/S 268A OF THE ACT. TOWARDS THE SAME, HE WOULD PLACE ON RECORD THE COPY OF INSTRUCTION NO. 5/2004 DATED 10.07.2014 ISSUED BY THE BOARD. THE HONBLE HIGH COURT AS IN THE CASE OF CIT VS. SMT. VIJAYA V KAVEKAR [2013] 350 ITR 237 (BOM) HAS HELD T HAT THE LIMIT PRESCRIBED U/S 268A WOULD APPLY TO PENDING APP EALS AS WELL. ACCORDINGLY, IT WAS PLEADED THAT THE REVENUES APPEAL IS NOT MAINTAINABLE. 2.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR), CONFIR MED THE CALCULATION OF THE TAX EFFECT OF THE INSTANT APPEAL ; THE CLAIM OF ADDITIONAL DEPRECIATION, WHICH IS THE SOLE ISSUE IN DISPUTE, BEING FOR RS. 8.49 LACS. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE HONBLE JURISDICTIONAL HIGH COURT HAS T AKEN A CONSISTENT VIEW THAT THE MONETARY LIMIT PRESCRIBING THE REVENUE FROM PREFERRING AN APPEAL BEFORE DIFFERENT APPELLAT E FORUMS WOULD APPLY TO PENDING APPEALS AS WELL, AND FOR WHI CH REFERENCE MAY BE MADE TO THE DECISION IN THE CASE O F CIT VS. MADHUKAR K INAMDAR (HUF) [2009] 318 ITR 149 (BOM). T HE MUMBAI BENCHES OF THE TRIBUNAL HAVE CONSISTENTLY FO LLOWED THE SAID VIEW, BEING BINDING ON IT. UNDER THE CIRCUMSTA NCES; THERE BEING NO DISPUTE WITH REGARD TO THE QUANTUM OF TAX EFFECT, WE HAVE NO HESITATION IN HOLDING THE REVENUES INSTANT APPEAL IS NOT MAINTAINABLE IN VIEW OF SECTION 268A OF THE ACT. 2. AS IT CAN BE SEEN FROM THE GROUNDS OF APPEAL THE DELETION WHICH HAS BEEN CONTESTED BY THE REVENUE ARE A SUM O F RS.8,14,000/- AND RS.9,57,056/- ON WHICH TAX EFFECT APPARENTLY WOULD BE LESS THAN RS.4.00 LACS. HOWEVER , LD. DR PLEADED THAT THESE APPEALS COULD NOT BE DISMISSED O N ACCOUNT OF LOW TAX EFFECT AS THESE APPEALS WERE FILED PRIOR TO ISSUE OF INSTRUCTION BY CBDT DATED 10/07/2014 ISSUED UNDER SECTION 268A OF THE INCOME TAX ACT, 1961 (INSTRUCTION NO.5/20 14 (F.NO.279/MISC.142/2007-ITJ(PT)] VIDE WHICH THE TAX EFFECT LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL WAS ENHANCED FROM RS.3.00 LACS TO RS.4.00 LACS. 3. WE HAVE CONSIDERED THE SUBMISSION OF LD. DR. HOW EVER, ACCORDING TO FOLLOWING DECISIONS OF HONBLE JURISDI CTIONAL HIGH COURT, SUCH NOTIFICATIONS ISSUED UNDER SECTION 268A WOULD BE APPLICABLE EVEN TO THE APPEALS FILED BEFORE ISSUE O F THE NOTIFICATION IF THE LIMIT IS ENHANCED: 1. IN THE CASE OF CIT VS. SMT. VIJAYA KAVEKAR (201 3 30 TAXMANN.COM 412) IT WAS HELD AS UNDER: M/S MANSI CONSTRUCTION ITA 8144/M/2010 3 SECTION 260A, READ WITH SECTION 268A, OF THE INCOME-T AX ACT, 1961 - HIGH COURT - APPEALS TO - TAX EFFECT - WHETH ER INSTRUCTION NO. 3 OF 2011, DATED 9-2-2011, SPECIFYING MONETARY LIMIT OF RS. 10 LAKHS FOR MAINTAINABILITY OF APPEAL BEFORE HIGH COURT IS APPLICABLE ON PENDING APPEALS AS WELL - HELD, YES - WHETHER, THEREFORE, WHERE TAX EFFECT IN REVENUES APPEALS WA S LESS THAN RS. 10 LAKHS 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-T AX ACT, 1961 - APPEAL OR APPLICATION FOR REFERENCE - FILING OF, BY INCOME- TAX AUTHORITY - WHETHER CIRCULAR/INCOME-TAX INSTRUC TION NO. 5 OF 2008, DATED 15-5-2008 ISSUED BY CBDT DIRECTING INCO ME-TAX AUTHORITIES NOT TO FILE APPEALS IF TAX EFFECT IS LE SS THAN RS. 4 LAKHS WOULD BE APPLICABLE TO CASES PENDING BEFORE H IGH COURT AS ON 15-5-2008 EITHER FOR ADMISSION OR FOR FINAL D ISPOSAL, EVEN THOUGH SAID APPEALS AND/OR PETITIONS WERE FILED BEF ORE HIGH COURT PRIOR TO 15-5-2008 - HELD, YES 4. IN VIEW OF THE SITUATION WE DISMISS THE APPEALS FILED BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT AS PER AFOREMEN TIONED INSTRUCTION ISSUED BY CBDT DATED 10.07.2014 IN WHI CH TAX EFFECT LIMIT IS PRESCRIBED AT RS.4.00 LACS AND ALSO IN VIEW OF AFOREMENTIONED DECISIONS OF HONBLE BOMBAY HIGH COU RT. 3. SINCE THE ISSUE OF LOW TAX EFFECT IS DECIDED BY THE COORDINATE BENCH AT MUMBAI, AS WELL AS BY THE HON'BLE BOMBAY H IGH COURT IN THE CASE OF MADHUKAR K INAMDAR ( SUPRA ), WE ARE OF THE VIEW THAT THE APPEAL, AS FILED BY THE DEPARTMENT IS NON-MAINTAINA BLE. 4. WE, THEREFORE, DISMISS THE APPEAL AS NON MAINTAI NABLE. 5. IN THE RESULT, THE APPEAL AS FILED BY THE DEPART MENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH OCTOBER, 2014. SD/- SD/- ( !' ) ( ) # $% # $% # $% # $% $% $% $% $% (N K BILLAIYA) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 16 TH OCTOBER, 2014 M/S MANSI CONSTRUCTION ITA 8144/M/2010 4 .1/ COPY TO:- 1) ,-/ THE APPELLANT. 2) ./,-/ THE RESPONDENT. 3) THE CIT (A)-35, MUMBAI. 4) 8 25 , MUMBAI / THE CIT- 25, MUMBAI. 5) 9:.1 B , , THE D.R. B BENCH, MUMBAI. 6) :;< COPY TO GUARD FILE. $5 / BY ORDER [ =/>? , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *AB> .. * CHAVAN, SR. PS