ITO, Madurai V. K.Sugantha Lakshmi, Madurai

MA 160/CHNY/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5484 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 27-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SRINIRANJANI
• Keywords: Maximum Marginal Rate; Tax effect
• Section: 143(3)

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M.P. NO. 160/MDS/2017 [IN I.T.A.NO. 1502/MDS/2016] / ASSESSMENT YEAR :20 1 1 - 1 2 THE INCOME TAX OFFICER , NON CORPORATE WARD 3(4) MADURAI 625 002. VS. SMT. K. SUGANTHA LAKSHMI, MMR COMPLEX, NMR COMPLEX, B - 4, POLICE STATION WES T STREET, MADURAI 625 001. [PAN: BBNPS1049A ] ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI AR.V. SREENIVASAN, JCIT / RESPONDENT BY : MS. SRINIRANJANI, ADVOCATE / DAT E OF HEARING : 0 1 . 09 .201 7 / DATE OF P RONOUNCEMENT : 21 . 09 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE REVENUE SEEKS TO RECALL THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO. 1502/MDS/2016 DATED 28.12.2016 RELEVANT TO THE ASSESSMENT YEAR 2011 - 12. BY FILING COMPUTATION SHEET AS WELL AS REFERRING TO THE PETITION, THE LD. DR HAS SUBMITTED THAT THE TAX EFFECT IN THE APPEAL FILED BY THE DEPARTMENT WOULD BE .10,28,085/ - AND THEREFORE, THE APPEAL DISMISSED BY THE TRIBUNAL ON TAX EFFECT LESS THAN .10 M.P. NO . 160/M/17 2 LAKHS IS A MISTAKE APPARENT ON RECORD AND PRAYED FOR RECALLING THE ORDER OF THE TRIBUNAL. 2. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS .10,28,085/ - , WHICH INCLUDES EDUCTION CESS & SURCHARGE AND SINCE THE COMPONENTS LIKE SURCHARGE AND EDUCATION CESS CANNOT BE CONSIDERED AS TAX COMPONENT AND ONLY TAX TO BE CONSIDERED, THE TRIBUNAL HAS RIGHTLY DISMISSED THE A PPEAL AS UN - ADMITTED AND PRAYED THAT THE MISCELLANEOUS PETITION FILED BY THE REVENUE SHOULD BE DISMISSED. 3. WE HAVE HEARD BOTH SIDES, PERUSED THE COMPUTATION SHEET FILED BY THE DEPARTMENT AS WELL THE LD. COUNSEL, WHEREIN THE NET TAX WORKED OUT BY BOTH PARTIES COMES TO .10,28,085/ - AND .10,28,086 RESPECTIVELY , WHICH INCLUDES CESS, SURCHARGE, ETC. AS PER THE LD. COUNSEL THE COMPUTATION OF TAX EFFECTS IN THE APPEAL COMPRISES THE FOLLOWING: PARTICULARS AS PER 143(3) ( .) AS PER GIVING EFFECT ORDER ( .) DIFFERENCE ( .) TOTAL TAX 10,58,110 59,968 9,98,142 CESS 31,743 1,799 29,944 NET TAX 10,89,853 61,767 10,28,086 FROM THE ABOVE, IT IS CLEAR THAT IF THE CESS IS NOT INCLUDED IN THE COMPUTATION, THEN, THE TAX EFFECT WOULD BE LESS THAN .10 LAKHS. IT IS ALSO EVIDENT FR OM THE COMPUTATION SHEET FILED BY THE DEPARTMENT THAT THE EDUCATION CESS @ 3% WAS ADDED IN THE SAID COMPUTATION AMOUNTING TO M.P. NO . 160/M/17 3 .31,743/ - FOR ARRIVING THE NET TAX AT .10,28,085/ - . TO ANALYSE WHETHER THE COMPONENTS LIKE SURCHARGE AND EDUCATION CESS ARE REQUI RED TO BE INCLUDED TO DETERMINE THE TAX EFFECT, IT WOULD BE RELEVANT TO REPRODUCE THE DEFINITION OF TAX UNDER SECTION 2(43) OF THE INCOME TAX ACT: SECTION 2(43): TAX IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1965, AND ANY S UBSEQUENT ASSESSMENT YEAR MEANS INCOME - TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT, AND IN RELATION TO ANY OTHER ASSESSMENT YEAR INCOME - TAX AND SUPER - TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT PRIOR TO THE AFORESAID DATE [AND IN RELATION TO THE AS SESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2006, AND ANY SUBSEQUENT ASSESSMENT YEAR INCLUDES THE FRINGE BENEFIT TAX PAYABLE UNDER SECTION 115WA] BEING SO, THE COMPONENT LIKE SURCHARGE AND EDUCATION CESS CANNOT BE CONSIDERED AS TAX COMPONENT AN ONL Y TAX HAS TO BE CONSIDERED. IN THE PRESENT CASE, THE TAX IS ONLY .9,98,142/ - , WHICH IS BELOW THE THRESHOLD OF .10 LAKHS FOR FILING THE APPEAL BEFORE THE TRIBUNAL. ACCORDINGLY, WE ARE OF THE OPINION THAT THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DEVOID OF MERITS. 4. SIMILAR VIEW WAS ALSO TAKEN BY THE COORDINATE BENCHES OF THE TRIBUNAL IN THE CASE OF ITO V. M/S. VADACHENNAIYIL VAZHUM THIRUCHENDUR SRIVAIKUNDAM SANTHAKULAM TALUKA NADARGAL AIKIYA SANGAM IN M.P. NO. 155/MDS/2015 DATED 11.11.2015. M OREOVER, BY FOLLOWING THE DECISION OF LUCKNOW BENCH TRIBUNAL IN THE CASE OF DCIT V. YUVRAJ SINGH IN I.T.A. NO. 408/LKW/2011 DATED 23.12.2013, IN THE CASE OF ACIT V. SUDHIR PRUSHOTTAM MEHTA IN I.T.A. NO. 6804/MUM/2014 DATED 07.09.2016, THE MUMBAI BENCHES M.P. NO . 160/M/17 4 OF THE TRIBUNAL HAS ALSO TAKEN SIMILAR VIEW. UNDER THE ABOVE FACTS AND CIRCUMSTANCES AS WELL AS IN VIEW OF THE ABOVE JUDICIAL PRECEDENTS, THE MISCELLANEOUS PETITION FILED BY THE DEPARTMENT STANDS DISMISSED. 5. IN THE RESULT, THE M.P. FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 21 ST SEPTEMBER, 2017 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 21. 09 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.