VERSHRAJ EXPORTS P. LTD, MUMBAI V. DCIT RG 8(3), MUMBAI

ITA 8514/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4236 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: K
• Next Hearing Date: 10-07-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 15-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retrospective amendment

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL K KK K BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI . , ! ! ! ! '# '# '# '# , $ $ $ $ BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI B. R B. R B. R B. RAMAKOTAIAH AMAKOTAIAH AMAKOTAIAH AMAKOTAIAH, AM , AM , AM , AM & && & S SS SHRI HRI HRI HRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.8514 8514 8514 8514/MUM/201 /MUM/201 /MUM/201 /MUM/2011 11 1 ( $% & $% & $% & $% & / ASSESSMENT YEAR :2005-06) VERSHRAJ EXPORT PVT. LTD. 7C, SENIOR ESTATE NEAR SONA UDYOG, PARSI PANCHAYAT RAOD, ANDHERI (E) MUMBAI-69 % % % % / VS. DCIT RANGE (8)(3) MUMBAI ' ./ #( ./ PAN/GIR NO. :AAACV4644E ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , ') , ') , ') , / APPELLANT BY : NONE *+') - , *+') - , *+') - , *+') - , /RESPONDENT BY : SHRI AJIT KUMAR JAIN ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.8030 8030 8030 8030/MUM/201 /MUM/201 /MUM/201 /MUM/2011 11 1 ( $% & $% & $% & $% & / ASSESSMENT YEAR :2005-06) DCIT RANGE (8)(3) MUMBAI % % % % / VS. VERSHRAJ EXPORT PVT. LTD. 7C, SENIOR ESTATE NEAR SONA UDYOG, PARSI PANCHAYAT RAOD, ANDHERI (E) MUMBAI-69 ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , ') , ') , ') , / APPELLANT BY : SHRI AJIT KUMAR JAIN *+') - , *+') - , *+') - , *+') - , /RESPONDENT BY : NONE % - . % - . % - . % - . / DT. OF HEARING : 10 TH JULY 2013 /& -. /& -. /& -. /& -. /DT.OF PRONOUNCEMENT: 10 TH JULY 2013 0 / O R D E R PER : '# , . . / VIJAY PAL RAO, JM THESE CROSS APPEAL ARE DIRECTED AGAINST THE ORDER D ATED 23.9.2011 OF COMMISSIONER OF INCOME TAX(APPEALS) FO R THE ASSESSMENT YEAR 2005-06. ITA NO.8514 & 8030/MUM/201 VERSHRAJ EXPORTS P. LTD . . 2 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THE APPEAL WAS CALLED FOR HEARING DESPITE THE NOTICE OF THE HEARING DULY SERVED UPON THE ASSESSEE VIDE ACKNOWLEDGEMENT. A LETTER FOR REQUEST FOR ADJUSTMENT HAS BEEN FILED BY ONE SH RI NIRMAL KUMAR MALLAWAT STATED TO BE INCOME TAX PRACTICENER HOWEVER, THERE IS NO AUTHORITY ON RECORD FOR AUTHORISING MR. NIRMAL KUMAR MALLAWAT TO REPRESENT THE ASSESSEE. THEREFORE WE DO NOT ENTERTAIN THE SAID REQUEST IN THE ABSENCE OF THE AU THORITY LETTER. ITA NO. 8514/M/2011 ITA NO. 8514/M/2011 ITA NO. 8514/M/2011 ITA NO. 8514/M/2011 3. NOBODY AS APPEARED ON BEHALF OF THE ASSESSEE WHE N THIS APPEAL OF THE ASSESSEE WAS CALLED FOR HEARING DESPI TE NOTICE OF HEARING WAS DULY SERVED UPON THE ASSESSEE THROUGH R PAD, PROOF OF WHICH IS PLACED ON RECORD. THIS TYPE OF CONDUCT ON THE PART OF THE ASSESSEE SHOWS THAT THE ASSESSEE IS NOT INTERES TED IN PROSECUTING THE APPEAL FILED BY IT. ACCORDINGLY, WE DISMISS THE APPEAL AS NOT ADMITTED BY FOLLOWING THE DECISIONS O F THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS CWT(223 ITR 480(MP) AND ORDER O F THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF CIT VS MULTIPL AN (INDIA) PVT LTD (38 ITD 320 (DEL). 4. HOWEVER, IF THE ASSESSEE THROUGH PROPER APPLICAT ION CAN SATISFY THE TRIBUNAL FOR SUCH NON APPEARANCE ON THE DATE OF HEARING, THE TRIBUNAL MAY AT ITS DISCRETION RECALL THIS ORDER. ITA NO.8514 & 8030/MUM/201 VERSHRAJ EXPORTS P. LTD . . 3 ITA NO. ITA NO. ITA NO. ITA NO. 8030 8030 8030 8030/M/2011 /M/2011 /M/2011 /M/2011 5. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) FAILED TO INTERPRET THE PROVISIONS O F SECTION 92C(2) OF THE INCOME TAX ACT, 1961, IN ITS RIGHT PERSPECTIVE AND TRUE MEANING. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE BENEFIT O F -5% RELIEF TO THE EXTENT OF ` 18,86,736/- WITHOUT APPRECIATING THE FACT THAT THE BENEFIT OF -5% IS NOT AVAILABLE U NDER THE INCOME TAX ACT, 1961. 6. WE HAVE HEARD THE LD. DR AND CAREFULLY PERUSAL T HE RELEVANT RECORD. THE BENEFIT UNDER THE PROVISO TO S ECTION 92C(2) IS ONLY IN THE NATURE OF TOLERANCE RANGE OF 5% AND NOT STANDARD DEDUCTION. BY VIRTUE OF RETROSPECTIVE AMENDMENT IN THE PROVISO TO SECTION 92C(2) OF THE INCOME TAX ACT, THE LEGISLATU RE HAS MADE IT CLEAR THAT THE BENEFIT OF 5% IS ONLY A TOLERANCE R ANGE AND THEREFORE IT IS AVAILABLE ONLY WHEN THE PRICES OF I NTERNATIONAL TRANSACTION IS WITHIN THE RANGE OF 5% OF THE ARITHM ETIC MEAN OF MORE THAN ONE COMPARABLE PRICES. ACCORDINGLY, WE SE T ASIDE THE ORDER OF THE CIT(A) QUA THIS ISSUE AND DECIDE THIS ISSUE IN FAVOUR OF THE REVENUE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED AND APPEAL OF THE REVENUE IS ALLOWED. ITA NO.8514 & 8030/MUM/201 VERSHRAJ EXPORTS P. LTD . . 4 ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 1 0 TH JULY 2013 0 - /& 1 2%3 10 TH # - 4 SD/- SD/- ( . ) (B. RAMAKOTAIAH) ACCOUNTANT MEMBER ( '# ) $ (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 10 TH JULY 2013 SUBODH* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI