ACIT CEN CIR 34, MUMBAI V. BLASE BERNARD CORREA, MUMBAI

ITA 836/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93349 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Department
• Bench Allotted: G
• Next Hearing Date: 02-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 31-01-2011
• Court: TRIBUNAL
• Department Lawyers: K KRISHNA MURTHY
• Keywords: Business income; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO. 836/M/2011 (AY:2005 - 2006 ) I.T.A. NO. 837/M/2011 (AY:2006 - 2007 ) I.T.A. NO. 838/M/2011 (AY:2007 - 2008 ) ACIT, CENTRAL CIRCLE 34, R.NO.104, 1 ST FLOOR, AAYAKAR BHAVAN, MUMBAI 400 020. / VS. SHRI BLASE BERNARD CORREA, C/O. CORREA CAR COOL, CHINCHOLI PATHAK, ANDHERI MALAD LINK ROAD, MALAD (W), MUMBAI 400 064. ./ PAN : ABRPC7237K ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI K. KRISHNAMURTHY, DR / RESPONDENT BY : SHRI ANIL THAKRAR / DATE OF HEARING : 29.07.2015 / DATE OF PRONOUNCEMENT : 29. 0 7 .2015 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE THREE APPEALS UNDER CONSIDERATION. ALL THESE APPEALS ARE FILED BY THE REVENUE AGAINST THE COMMON ORDER OF THE CIT (A) - 41, MUMBAI DATED 16.11.2010 FOR THE ASSESSMENT YEAR S 2005 - 06, 2006 - 07 AND 2007 - 08 . SINCE, THE ISSUES INVOLVED IN THESE APPEALS ARE CONNECTED, THEREFORE, FOR THE SAKE OF CONVEN IENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2. SINCE, THE COMMON SOLITARY GROUND RAISED BY THE REVENUE IN THE SE APPEALS IS IDENTICAL, FOR THE SAKE OF REFERENCE, GROUND RAISED IN AY 2005 - 06 IS REPRODUCED WHICH IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) IS NOT JUSTIFIED IN DIRECTING THE AO TO EXCLUDE TURNOVER SHOWN BY W IFE OF ASSESSEE IN HER RETURN FROM BUSINESS TURNOVER SHOWN BY ASSESSEE WITHOUT APPRECIATING THE FACT THAT THERE EXIST NO BASIS THAT ANY PART OF UNDISCLOSED TURNOVER AS PER SEIZED RECORD BELONGS TO WISE OF APPELLANT AND WITHOUT APPRECIATING THE FACT THAT IN COME DECLARED BY WIFE OF APPELLANT WAS ACCEPTED ON PROTECTIVE BASIS ONLY. 2 3. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACTS OF THE CASE AND MENTIONED THAT THE AO MADE ADDITIONS OF (I) RS. 14, 18,699/ - FOR AY 2005 - 06; (II) RS. 16, 75,563/ - FOR AY 2006 - 07 AND (III) RS. 16,82,811/ - . IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AFORESAID ADDITIONAL INCOME CONTAINING THE TOTAL INCOME OF MRS. SHARON CORREA ALREADY TAXED IN HER HANDS. CONSIDERING THIS FACT, CIT (A) DIR ECTED THE AO TO EXCLUDE THE SAID INCOME OF MRS. SHARON CORREA, WIFE OF THE ASSESSEE, IN ALL THE THREE AYS . PARA 1.6 OF THE IMPUGNED ORDER IS RELEVANT IN THIS REGARD. 4. DURING THE PROCEEDINGS BEFORE US, LD COUNSEL FOR THE ASSESSEE FILED AN ASSESSMENT ORDE R DATED 23.12.2009 FOR THE AY 2005 - 06 IN THE CASE OF MS. SHARON BALSE CORREA AND SUBMITTED THAT HER BUSINESS INCOME FOR THE AY 2005 - 06 IS RS. 3,47,534/ - ONLY. FURTHER, HE SUBMITTED THAT THE TAX EFFECT ON SUCH INCOME IS BELOW RS. 4 LAKHS. SAME IS THE CASE IN TWO OTHER ASSESSMENT YEARS (2006 - 07 AND 2007 - 08). CONSIDERING THE SAME, THESE APPEALS OF THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF THE INSTRUCTION NO.5/2008, DATED 15.5.2008 OF THE CBDT. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF TH E REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. AFTER HEARING THE ARGUMENTS OF LD REPRESENTATIVES OF BOTH TH E PARTIES, WE FIND THAT IT IS NOT THE CASE OF THE REVENUE THAT THE TAX EFFECT IN ALL THESE THREE AYS IS ABOVE RS. 4 LAKHS. THEREFORE, WE AGREE WITH THE ARGUMENT OF THE LD COUNSEL FOR THE ASSESSEE. CONSIDERING THE SAME, THE TAX EFFECT FOR THE PRESENT APPEAL S IS LESS THAN RS. 4 LAKHS IN EACH AY . A CCORDING TO INSTRUCTION NO.5/2008, DATED 15.5.2008 OF THE CBDT, NO APPEAL SHOU LD BE FILED BY THE DEPARTMENT BEFORE THE TRIBUNAL IF THE TAX EFFECT IS LESS THAN RS. 4 LAKHS. IT IS ALSO HELD BY THE HONBLE BOMBAY HIGH COURT IN THE FOLLOWING CASES THAT THE INSTRUCTIONS OF THE CBDT DESCRIBING THE LIMIT TO THE TAX EFFECT WOULD BE APPLICA BLE TO THE PENDING APPEALS ALSO. (I) CIT VS. SMT. VIJAYA KAVEKAR [(2013) 30 TAXMANN.COM 412], BOMBAY HIGH COURT (II) CIT VS. MADHUKAR INAMDAR [(2009) 185 TAXMAN 101], BOMBAY HIGH COURT 3 6 . LD DR DID NOT CONTROVERT TO THE FACT THAT THE TAX EFFECT IN THE PRESENT APPEA L S IS LESS THAN RS. 4 LAKHS. 7 . IN THIS VIEW OF THE SITUATION, ALL THE THREE APPEAL S FILED BY THE REVENUE ARE DISMISSED ON ACCOUNT OF LOW TAX EFFECT. ORDER PRONOUNCED IN THE OPEN COURT O N 2 9 T H J U L Y , 2015 IMMEDIATELY AFTER COMPLETION OF HEARING. S D / - S D / - (AMIT SHUKLA) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 2 9 . 7 .2015 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI