ACIT, Kota V. SHRI MOHAMMAD MIYAN, Kota

MA 137/JPR/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6070 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 10-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Assessee Lawyers: PM M VIHYKFKHZ IZRFKHZ
• Keywords: Tax effect

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M M.A. NO. 137/JP/2017 (ARISING OUT OF ITA NO. 171/JP/2012) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 A.C.I.T., CIRCLE-1, KOTA. CUKE VS. MOHAMMAD MIYAN, PROP.- M/S MASOOM CONSTRUCTION CO., 5-B-18, VIGYAN NAGAR, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABYPM 2874 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.S. NEHRA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA & SHRI DEBANG GARGIEYA (ADV.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/01/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 22/01/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS MISC. APPLICATION HAS BEEN FILED BY THE REVENU E ON 24/08/2017. THE ITA NO. 171/JP/2012 FILED BY THE REV ENUE WAS DISMISSED BY THE ITAT VIDE ITS ORDER DATED 25/04/201 7 ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO. 21 OF 2015 DATED 10/12/2015. 2. THE LD DR RELIED ON THE SUBMISSIONS MADE IN THE M ISC. APPLICATION. WHILE THE LD. AR OF THE ASSESSEE HAS S UBMITTED AS UNDER: MA 137/JP/2017_ ACIT VS MOHAMMAD MIYAN 2 1. IN THE MA FILED BY THE DEPARTMENT, IT IS STATED THAT THE ID. CIT(A) IN ITS ORDER DATED 05.02.2015 IN ITA NO. 171/JP/12 DELETED THE ADDITIONS OF RS.29,71,662/- ON WHICH, THE TAX @ OF 30% INCLUDING EDUCATION CESS & SHEC @ OF 3% AND SURCHARGE @ 10%, CAME TO RS.10,10, 068/-. ACCORDINGLY, THE TAX ON THE DISPUTED ADDITIONS WAS MORE THAN RS.10 LAKHS AND HENCE THE HONORABLE ITAT HAS MISTAKENLY R ELIED UPON THE CBDT CIRCULAR. 2.1 IT IS SUBMITTED THAT THE ABOVE APPEAL IS FILED BY THE DEPARTMENT WAS COVERED BY THE CBDT CIRCULAR BEING A LOW TAX EFFECT , AS PER THE FOLLOWING CALCULATION: PARTICULARS AMOUNT (IN RS.) TOTAL ADDITIONS: I. ON ACCOUNT OF LTCG 44,84,675/ - TOTAL ADDITIONS 44,84,675>/ - TAX ON TOTAL ADDITIONS @ 20% 8,96,935/ - SURCHARGE @ 10% 89,694/ - 9,86,629/ - EC & SHEC @ 3% 19,733/ - TOTA L TAX 10,06,362/ - 2.2 AS PER THE CBDT CIRCULAR, THE DEPARTMENT SHALL NOT FILE AN APPEAL WHERE THE TAX EFFECT INVOLVED IS BELOW RS.10 LAKHS. THEREFORE, THE ONLY QUESTION TO BE DECIDED IS WHETHER THE FAX EFFECT IN CLUDES INCOME TAX ONLY OR INCLUDES SURCHARGE AND EDUCATION CESS ALSO. IN THIS CASE, THE TAX EFFECT INCLUDING THE SAME STANDS AT RS.10,10,068/-. HOWEVER, AT THE SAME TIME, EXCLUDING THE SURCHARGE AND EC, THE AMOU NT OF INCOME TAX ONLY STANDS AT RS.8,96,935/- (OR EXCLUDING EC ONLY STAND AT RS.9,86,629/-) WHICH IS FAR BELOW RS.10 LAKHS. 3. COVERED ISSUE: 3.1 THIS CONTROVERSY IS ALREADY COVERED AS A SIMIL AR MA FILED BY THE REVENUE IN CASE OF M/S SHIV EDIBLES IN MA NO. 95/JP /2017 (COPY ENCLOSED) HAS RECENTLY BEEN DISMISSED VIDE ORDER DA TED 16.01.2018 MA 137/JP/2017_ ACIT VS MOHAMMAD MIYAN 3 WHEREIN, THIS HONBLE BENCH HAS TAKEN A VIEW THAT F OR THE PURPOSES OF COMPUTING TAX EFFECT, THE AMOUNT OF EDUCATION CESS SHOULD NOT BE CONSIDERED. THE RELEVANT EXTRACT IS HERE AS UNDER: 3. AFTER HEARING BOTH THE SIDES, THE BENCH FIND TH AT THE TAX EFFECT INCLUDING THE SURCHARGE ALSO COME BELOW THE THRESHO LD LIMIT OF RS. 10.00 LACS. CONSIDERING THESE FACTS, THE BENCH FIND NO ME RIT IN THIS M.A. OF THE REVENUE AND THE SAME IS HEREBY DISMISSED. 4. IN THE RESULT, THIS MISC. APPLICATION OF THE RE VENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/2018. 3.2 OTHER DIRECT DECISIONS: IN THE CASES OF DCIT V/ S DOME BELL ELECTRONICS INDIA LTD. IN ITA NO. 2480/MUM/2012 VIDE ORDER DATE D 22.07.2016 (DPB 5-9) AND DCIT V/S SHRI YUVRAJ SINGH IN ITA NO. 408/LKW/2011 VIDE ORDER DATED 23.12.2013 (DPB 10-13), IT HAS BEEN HEL D THAT FOR THE PURPOSE OF COMPUTING TAX EFFECT FOR THE PURPOSES OF THE CIRCULAR, SHOULD NOT INCLUDE THE SURCHARGE AND CESS. 3.3 ALSO THE HONBLE DELHI ITAT IN THE CASE OF ACIT V/S DALLAS FINANCE LTD. IN ITA NO. 3946/DEL/2010 VIDE THEIR ORDER DATED 07. 04.2017 AT PARA 7 (DPB 14-22), HELD THAT 7. SO, RESPECTFULLY FOLLOWING THE AFORESAID VIEW OF THE CO ORDINATE BENCH, WE DO NOT SEE MERIT IN THIS CONTENTION OF THE ID. D R THAT THE SURCHARGE AND THE CESS IS A PART OF THE TAX. 3.4 IN THE CASES OF ACIT V/S R. VISWANATHAN IN ITA NO. 30/MDS/2011 AND ITO VS. P. PRASEN KUMAR IN ITA NO. 418/HYDERABAD/20 14 WHEREIN, IT HAS BEEN HELD THAT SURCHARGE AND EDUCATION CESS SHO ULD NOT BE INCLUDED WHILE CALCULATING THE TAX EFFECT. THIS CAS E HAS RECENTLY BEEN FOLLOWED IN ITO VS M/S. SAROJBEN G. SHAH IN MA NO.8 9/AHD/2016 VIDE ORDER DATED 06/01/2017. MA 137/JP/2017_ ACIT VS MOHAMMAD MIYAN 4 3.5 LATEST IN THE CASE OF ITO VS LAMBA CELEBRATION S RESORT IN MA NO. 45/CHD./2016 DATED 19/05/2017, ITO VS SHRI VISHWESH AR SAHAKARI PATPEDHI MARYADIT IN ITA NO. 3929/MUM./2016 DATED 1 9.04.2017, ITO VS PATTEBOINA MAHESWARA RAO IN ITA NO. 29/VIZ./2013 DATED 03/05/2017, ITO VS P.PRASEN KUMAR IN MA NO. 63/HYD. /2016 DATED 07.12.2016, ITO VS SMT. PARULBEN JAYANTIBHAI PATEL IN 320/AHD/2014 VIDE ORDER DATED 12.04.2017 AND DCIT VS M/S. TILAKN AGAR INDUSTRIES LTD IN ITA NO.2506/MUM/2015 VIDE ORDER DATED 31.05.2017 . 3.6 RECENTLY IN ITO VS SHRI K. VIVEKANANDAN IN M.P . NO.220/MDS/2016 VIDE ORDER DATED 15/03/2017 THE MA FILED BY THE DEP ARTMENT HAS BEEN REJECTED AND THE CASE OF CIT V. K. SRINIVASAN (1972 ) 83 ITR 346 WAS ALSO DISTINGUISHED. 3.7 ALSO KINDLY REFER DALMIA CEMENT (BHARAT) LTD. V/S CIT (2013) 263 CTR 0308 (DEL) THOUGH RENDERED IN THE CONTEXT OF SEC. 4 3B YET IS RELEVANT BECAUSE IT HAS HELD THAT TAX DOES NOT INCLUDE CESS AND SURCHARGE. THUS, THE TAX EFFECT HAVING BEEN BELOW RS.10 LAKHS , THE HONBLE ITAT HAS RIGHTLY HELD THAT THE MA OF THE DEPARTMENT WAS NOT MAINTAINABLE. 4. IN ANY CASE, IF THERE IS A CONTRARY VIEW, THE I SSUE BECOMES DEBATABLE WHEN NO RECTIFICATION IS PERMISSIBLE. OTHERWISE ALS O IT IS A CASE OF REVIEW WHICH IS NOT PERMISSIBLE WITHIN THE NARROW S COPE OF THE POWERS CONFERRED UPON THE ITAT U/S 254(2) OF THE ACT. THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE, IS AN ATTEMPT TO PRAY FOR REVIEW UNDER THE GRAB OF RECTIFICATION. KINDLY REFER ITO V/S ITAT (1987) 168 ITR 0809 (RAJ) AND 82 ITR 50 (SC). 5. PRESENT MA OF REVENUE IS NOT MAINTAINABLE: MA 137/JP/2017_ ACIT VS MOHAMMAD MIYAN 5 5.1 OTHERWISE ALSO, THE PRESENT MA FIELD BY THE REV ENUE I.E MA NO. 137/JP/2017 IS NOT MAINTAINABLE IN AS MUCH AS FIRST LY THIS IS THE SECOND MA FILED BY THE DEPARTMENT WHICH RAISED EXACTLY THE SAME ISSUE, WHICH HAS ALREADY BEEN ADJUDICATED IN THE FIRST MA (I.E. MA 147/JP/2016).THE PRESENT MA NO. 137/JP/2017 IS EFFE CTIVELY PREFERRED BY THE REVENUE IN RELATION TO/AGAINST THE ITAT ORDE R DATED 28.03.2017 PASSED (U/S 254(2) OF THE ACT) IN MA NO. 147/JP/201 6. 5.2 IT IS A WELL SETTLED ISSUE, DECIDED BY VARIOUS HIGH COURTS AND TRIBUNALS, THAT A SECOND MA IS NOT MAINTAINABLE ON THE SAME IS SUE WHICH WAS ADJUDICATED BY THE COURT IN THE FIRST MA. KINDLY RE FER: CIT V/S AISWARYA TRADING CO. (2010) 236 CTR 334 ( KER), WHEREIN IT WAS HELD THAT APPEAL (TRIBUNAL)RECTIFICATION UNDER S. 254(2)M AINTAINABILITY OF SECOND PETITIONONCE THE RECTIFICATION APPLICATION FILED BY ONE OF THE PARTIES IS CONSIDERED AND DECIDED BY THE TRIBUNAL R IGHTLY OR WRONGLY, ANOTHER RECTIFICATION APPLICATION ON SAME ISSUE IS NOT MAINTAINABLE QUESTION OF LIABILITY FOR INTEREST PAYABLE BY THE A SSESSEE UNDER S. 220(2) WAS DECIDED BY THE TRIBUNAL IN THE RECTIFICATION AP PLICATION FILED BY THE ASSESSEE IN THEIR FAVOURDEPARTMENT CANNOT SEEK TO RECTIFY THE VERY SAME ORDER AGAIN UNDER S. 254(2) BY FILING ANOTHER APPLI CATION IN CIT V/S CHEMICAL & ALLIED PRODUCTS (2007) 207 CTR 441 (ALL) HELD THAT APPEAL (TRIBUNAL)RECTIFICATION UNDER S. 254(2)SE COND APPLICATION ON SAME SET OF FACTSTRIBUNAL HAD REJECTED THE FIRST A PPLICATION FILED UNDER S. 254(2) ON THE GROUND THAT IT WAS FILED UNDER MISCONCEIVED NOTION AND THAT THERE WAS NO MISTAKE APPARENT ON THE FACE OF THE RECORD IN TH E ORDER OF THE TRIBUNALIT WAS NOT OPEN TO THE TRIBUNAL TO ENTERTAIN THE SECOND APPLICATION WHICH WAS FILED ON THE SAME SET OF FACT S AND RECALL ITS APPELLATE ORDER ON THE ALLEGED PREMISE THAT THERE W AS AN ERROR APPARENT IN THE ORDER IN SARISHTI PAL V/S ITO (2002) 76 TTJ 224(ASR) HE LD THAT MA 137/JP/2017_ ACIT VS MOHAMMAD MIYAN 6 APPEAL (TRIBUNAL)RECTIFICATION UNDER S. 254(2)MA INTAINABILITY OF SECOND MISCELLANEOUS APPLICATIONASSESSEE HAD EARLI ER MOVED A MISCELLANEOUS APPLICATION UNDER S. 254(2) AND THE T RIBUNAL HAD REJECTED THE SAME ON THE GROUND THAT THERE WAS NO ERROR AND ALL THE MATERIALS WERE TAKEN INTO CONSIDERATION SECOND RECTIFICATION APPLICATION RAISING SIMILAR GROUNDS AND CONTENTIONS IS NOT MAINTAINABLE ORDER REJECTING AN APPLICATION FOR RECTIFICATION UNDER S. 254(2) IS NO T AN ORDER PASSED UNDER S. 254(1), AND THEREFORE, TRIBUNALS ORDER COULD NOT B E RECTIFIED UNDER S. 254(2) ALSO, CONSIDER KAILASHNATH MALHOTRA V/S JCIT (20 10) 129 TTJ (MUMBAI)(TM) 393 5.3 SECONDLY, THE DEPT, DID NOT FILE ANY APPEAL IN A.Y 2006-07 AGAINST THE ORDER DATED 26/03/2011 IN APPEAL NO. 260/2010-11 (P B 54 PARA 6.3) OF CIT(A) WHEREIN THE VERY SAME ISSUE AROSE. KINDLY RE FER THE ORDER OF THE CIT(A) IN CASE OF THE JOINT OWNER ZAHIDA BANO, HAVI NG 50% SHARE WITH THE SAME AMOUNT OF LTCG OF RS. 44,84,675/-, FOR THE REASON STATED BY THE REVENUE THAT IT WAS A LOW TAX EFFECT APPEAL. TH US, THE REVENUE ITSELF HAS ADMITTED THAT THE ISSUE OF TAXABILITY OF LTCG OF RS. 44,84,675/-, WAS LTE MATTER. 5.4 SIMILARLY, IN THE CASE OF PRESENT ASSESSE ALSO, WHO IS JOINT OWNER HAVING 50% SHARE AND HAVING SAME AMOUNT OF ADDITION ON LTC G OF RS. 44,84,675/-, THE CIT(A) VIDE ITS ORDER DATED 19/12/ 2011 IN APPEAL NO. 259/10-11 (INTERNAL PG 13 PARA 4.42) HELD AS UNDER: THE PROPERTY IN QUESTION WAS JOINTLY OWNED BY THE ASSESSEE AND ZAHIDA BANO. THE AGREEMENT FOR DEVELOPMENT OF THIS LAND WAS EXE CUTED JOINTLY. MY PREDECESSOR CIT (A) IN ITS ORDER DATED 30.06.20 10 (APPEAL NO.509/0809) HAS DECIDED THAT LONG TERM CAPITAL GAI N FROM SALE OF PROPERTY WOULD BE TAXABLE IN THE ASSESSMENT YEAR 20 06-7 AND NOT IN ASSESSMENT YEAR 2005-06. THE FACTS BEING THE SAME IT IS HELD THAT LONG TERM CAPITAL GAIN FROM ABOVE TRANSACTION SHALL BE TAXABLE IN THE ASSESSMEN T YEAR 2006-07. I WOULD LIKE TO MENTION THAT THE ASSESSEE HAS ALREADY DECLARED THIS MA 137/JP/2017_ ACIT VS MOHAMMAD MIYAN 7 INCOME IN ASSESSMENT YEAR 2006-07 AND THE SAME HAS BEEN ACCEPTED BY THE DEPARTMENT. IN VIEW OF THE ABOVE THIS GROUND OF APPEAL IS, ALL OWED. ACCORDINGLY THE APPEAL/MA OF THE REVENUE KINDLY BE DISMISSED. 3. AFTER HEARING BOTH THE SIDES, THE BENCH FIND THA T THE TAX EFFECT INCLUDING THE SURCHARGE ALSO COME BELOW THE THRESHOL D LIMIT OF RS. 10.00 LACS. CONSIDERING THESE FACTS, THE BENCH FIND NO MERIT IN THIS M.A. OF THE REVENUE AND THE SAME IS HEREBY DISMISSED. 4. IN THE RESULT, THIS MISC. APPLICATION OF THE REV ENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/2018. SD/- SD/- FOT; IKY JKO HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22 ND JANUARY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE A.C.I.T., CIRCLE-1, KOTA. 2. IZR;FKHZ @ THE RESPONDENT- SHRI MOHAMMAD MIYAN, KOTA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (MA NO. 137/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR