DCIT 17(1), MUMBAI V. ROSHAN FABRICATORS, MUMBAI

ITA 825/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2508 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-01-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: PAWAR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 825/MUM/2013 ASSESSMENT YEAR: 2007-08 THE D CIT - 1 7(1 ), 1 ST FLOOR, ROOM NO. 113, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI. VS. ROSHAN FABRICATORS, JASMINE APARTMENTS, FLAT NO. 905, DOCKYARD ROAD, MAZGAON, MUMBAI- 400010. PAN- AAEFR0103M (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. B.S. BIST RESPONDENT BY : SHRI. PAWAR DATE OF HEARING: 20/07/2016 DATE OF PRONOUNCEMENT: 20/07/2016 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST ORDER DATED 14/11/2012 PASSED BY THE LD CIT(APPEALS)-17, MUMBAI FOR THE AS SESSMENT YEAR 2007-08. 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER O N FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS . 31,40,303/- WHICH IS CAPITAL GAIN ASSESSABLE IN THE HANDS OF THE FIRM U/S 45(4) R.W.S. 2(47) OF THE I.T. ACT. 2 ITA NO. 825/MUM/2013 ASSESSMENT YEAR: 2007-08 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS . 31,40,303/- MADE UNDER THE HEAD CAPITAL GAIN IGNORING THE DECISIONS IN THE CASES OF SUNIL SIDDHARTH BHAL VS. CIT 1985) 156 ITR 509 (SC) , CIT VS. A.N. NAIK ASSOCIATES (2004) 187 CTR (BOM) 162 AND CIT VS . GURUNATH TALKIES (2009) 226 CTR (KARNATAKA) 474. 3. THE APPELLANTS PRAYS THAT THE ORDER OF THE CIT(A ) ON THE ABOVE GROUNDS BE RESERVED AND THAT OF THE ASSESSING OFFIC ER BE RESTORED. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS CASE IS BELOW RS.10,00,000/- AS THE TOTAL A DDITION MADE BY THE AO IN RESPECT OF CAPITAL GAIN ASSESSABLE IN THE HANDS OF THE FIRM U/S 45(4) R.W.S 2(47) OF THE I.T. ACT IS RS. 31,40,303/-. HENCE, AS PER THE CBDT CIRCULAR NO. 21 OF 2015, DATED 10/12/2015, THE PRESENT APPEAL IS NOT M AINTAINABLE. 4. THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT I N DEPARTMENTS APPEAL IS BELOW RS.10 LAKHS, WE FIND THAT THE ISSUE RAISED IN APPEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE C IRCULAR. SINCE, IT HAS BEEN SPECIFICALLY CLARIFIED IN THE CIRCULAR AFORESAID TH AT THE INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS; THE PRE SENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMIS S THE SAME IN LIMINE . ORDER PRONOUNCED IN THE OPEN COUR T ON 20 TH JULY, 2016 SD/- SD/- ( B.R.BASKARAN ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 20/07/2016 3 ITA NO. 825/MUM/2013 ASSESSMENT YEAR: 2007-08 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA