ACIT 25(3), MUMBAI V. MIHIR BUILDERS, MUMBAI

ITA 8690/MUM/2010

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2040 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-06-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 13-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MISHRA
• Assessee Lawyers: BEHARILAL
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN , AM AND AMARJIT SINGH , JM ./ I.T.A. NO .8690/ MUM/20 10 ( / ASSESSMENT YEA R : 2004 - 05 ) ASTT. COMMISSIO NER OF INCOME TAX - 25(3), C - 11, ROOM NO. 308, PRATYAKSHKAR BHAVAN, BANDRA - KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 / VS. M/S MIHAR B UILDERS, SHOP NO.3, A WING, HARI DARSHAN, BHOGILAL FADIA ROAD, KANDIVALI (W), MUMBAI - 400067 ( / APPE LLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAAFM2938F / APPELLANT BY SHRI S K MISHRA / RESPONDENT BY SHRI BEHARILAL / DATE OF HEARING : 28.12.2 015 / DATE OF PRONOUNCEMENT: 28.12.2015 / O R D E R P ER B R BASKARAN, AM : THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 30.9.2010 PASSED BY LD CIT(A) - 35, MUMBAI FOR ASSESSMENT YEAR 2004 - 05. 2. AT T HE TIME OF HEARING, THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS.10 LAKHS AND ACCORDINGLY SUBMITTED THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF THE LATEST CIRCULAR NO. 21 /2015 DATED 10.12.2015 ISSUED BY THE CBDT. THE LD A.R SUBMITTED THAT THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER OF LD CIT(A) CANCELLING THE PENALTY OF RS.5,31,891/ - LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. ACCORDINGLY HE ITA NO. 8690 / MUM/ 2010 2 SUBMITTED THAT THE QUANTUM OF PENALTY DELETED BY THE LD CIT(A) WAS LESS THAN THE PRESCRIBED LIMIT OF RS.10.00 LAKHS. 3. THE LD. DR DID NOT DISPUTE THE SUBMISSIONS MADE BY THE LD.AR. 4. WE NOTICE THAT THE REVENUE IS CONTESTING THE DECISION OF LD CIT(A) IN CANCELLING THE PE NALTY OF RS.5,31,891/ - AND HENCE THE TAX EFFECT INVOLVED ON THE ABOVE SAID DISPUTED AMOUNT WORKS OUT TO LESS THAN RS.10 LAKHS. RECENTLY THE CBDT HAS ISSUED A CIRCULAR NO.21/2015 DATED 10.12.2015 PRESCRIBING NEW MONETARY LIMITS FOR PREFERRING APPEALS AGAIN ST THE ORDERS PASSED BY LD CIT(A) BEFORE THE TRIBUNAL. THE RELEVANT PORTION OF THE CIRCULAR CITED ABOVE READS AS UNDER: F NO 279/MISC. 142/2007 - ITJ ( PT) GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD DIRECT TAXES CIRCULAR NO. 21/2015 NEW DELHI THE 10TH DECEMBER, 2015 SUB : REVISION OF MONETARY LIMITS FOR FILING OF APPEALS BY THE DEP ARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE SUPREME COURT - MEASURES FOR REDUCING LITIGATION REG REFERENCE IS INVITED TO BOARD'S INSTRUCTION NO 5/2014 DATED 10.07.2014 WHEREI N MONETARY LIMITS AND OTHER CONDITIONS FOR FIL ING DEPARTMENTAL APPEALS (IN INCOME - TAX MATTERS) BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT WERE SPECIFIED. 2 . IN SUPERSESSION OF THE ABOVE INSTRUCTION, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY B E FILED ON MERITS BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EX CEED THE MONETARY LIMITS GIVEN HEREUNDER: ITA NO. 8690 / MUM/ 2010 3 S NO APPEALS IN INCOME - TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/ - 2 BEFORE HIGH COURT 20,00,000/ - 3 BEFORE SUPREME COURT 25,00,000/ - IT IS CLARIFIED THAT AN APPEAL SHOULD NO T BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOT AL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'DISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDE R DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 5. . 6 7. 8. . 9. .. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED . APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 11. .. IT CAN BE NOTICED THAT THE CBDT HAS FURTHER CLARIFIED THAT THIS NEW CIRCULAR/INSTRUCTION SHALL APPLY RETROSPECTIVELY, I.E., EVEN TO THE PEND ING APPEALS. IT IS ALSO STATED THAT THE QUANTUM OF PENALTY DELETED OR REDUCED SHALL BE CONSIDERED FOR DETERMINING THE MONETARY LIMITS. ITA NO. 8690 / MUM/ 2010 4 5 . IT IS WELL SETTLED PROPOSITION THAT THE CIRCULARS ISSUED BY THE CBDT ARE BINDING ON THE INCOME TAX AUTHORITIES. FOR THIS PROPOSITION, ONE MAY GAINFULLY REFER TO THE DECISIONS RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF AZADI BACHAO ANDOLAN (2003)(177 TAXATION 775) AND PRADIP J MEHTA VS. CIT (2008)(300 ITR 231). HENCE, THE LATEST CIRCULAR ISSUED BY THE CBDT (RE FERRED SUPRA) IS BINDING ON THE INCOME TAX AUTHORITIES. ACCORDINGLY, WE FIND MERIT IN THE SUBMISSIONS OF LD A.R THAT THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE, SINCE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS.10 LAKHS. ACCORDINGLY, WE DISMIS S THE APPEAL FILED BY THE REVENUE. 6 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 28 TH DEC, 2015. 28 TH DEC, 2015 SD SD ( AMARJIT SINGH ) ( B.R. BASKARAN) JUDICI AL MEMBER ACCOUNTANT MEMBER MUMBAI: 28 TH DEC , 2015 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR ) , /ITAT, MUMBAI