ITO WD 17(2)(2), V. ASHOK VINAYKUMAR OZA,

MA 174/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9060 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VISHWAS V MEHENDALE
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (J.M.) AND SHRI N.K. BILLAIYA (A.M.) M.A. NO. 174/MUM/2012 ARISING OUT OF ITA NO. 5735/MUM/2009 ASSESSMENT YEAR : 2006-07 INCOME TAX OFFICER, WD. 17 (2)(2), ROOM NO. 212, 2 ND FLOOR, PIRAMAL CHAMBERS, MUMBAI. 400 012. VS. SHRI ASHOK VINAYKUMAR OZA, 82, ANUJ MANSION, V.A. OZA MARG, KING CIRCLE, MATUNGA, MUMBAI- 400 019. PAN : AAAPO 0910M (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI MOHIT JAIN RESPONDENT BY : SHRI VISHWAS V. MEHENDALE DATE OF HEARING 31-08-2012 DATE OF PRONOUNCEMENT 31-08-2012 O R D E R PER DINESH KUMAR AGARWAL, J.M. THIS MISC. APPLICATION DTD. 14-3-2012 FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DTD. 11-10-2011 PASSED B Y THE TRIBUNAL IN ITA NO. 5735/MUM/2009 FOR THE A.Y. 2006-07 WHEREIN THE TRIBUNAL HAS DISMISSED THE REVENUES APPEAL ON THE GROUND THAT T HE TAX EFFECT IS LESS THAN RS. 3 LACS. 2. IN THE MISC. APPLICATION, IT WAS INTER ALIA SUBM ITTED BY THE REVENUE THAT SINCE IN THE PRESENT CASE THE TAX EFFECT IS RS . 2,44,000/-, THEREFORE, IN VIEW OF CBDT INSTRUCTION NO. 05/2008 DTD. 15-5-2 008, APPLICABLE AT MA NO. 174/MUM/2012 2 THE RELEVANT TIME, WHEREIN THE MONETARY LIMIT FOR F ILING THE APPEAL WAS RS. 2,00,000/-, THE TRIBUNAL HAS COMMITTED A MISTAK E IN APPLYING THE INSTRUCTION NO. 03/2011 DTD. 9-2-2011 WHICH ARE APP LICABLE ON OR AFTER 9-2-2011, THEREFORE, THE ORDER PASSED BY THE TRIBUN AL BE RECALLED. 3. AT THE TIME OF HEARING, THE LD. D.R. SUBMITS THA T FOR THE REASONS AS MENTIONED IN THE MISC. APPLICATION FILED BY THE REV ENUE, THE ORDER PASSED BY THE TRIBUNAL BE RECALLED. 4. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE WHILE RELYING ON THE ORDER OF THE TRIBUNAL SUBMITS THAT THE TRIBU NAL HAS RIGHTLY DISMISSED THE REVENUES APPEAL FOLLOWING THE CBDT I NSTRUCTION NO. 3/2011 DTD. 9-2-2011 AND IN SUPPORT THE RELIANCE WA S ALSO PLACED ON THE FOLLOWING CASES:- 1. CIT VS. M/S VIRENDRA & CO. IN INCOME TAX APPEAL NO. 987 OF 2000 DTD. 20-7-2012 (BOM). 2. CIT VS. SMT. VIJAYA V. KAVEKAR IN TAX APPEAL NO. 78 & 76 OF 2007 DTD. 29-7-2011 (BOM). 3. CIT VS. SURESHCHANDRA DURGAPRASAD KHATOD (HUF) I N TAX APPEAL NO. 1404 OF 2010 DTD. 24-08-2012. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND MERIT IN THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL HAS RIGHTLY APPLIED THE CBDT INSTRUCTION NO. 3/2011 DTD. 9-2-2011. RECENTLY , THIS BENCH OF THE TRIBUNAL IN M.A. NO. 41/MUM/2012 ARISING OUT OF ITA NO. MA NO. 174/MUM/2012 3 2910/MUM/2010 FOR A.Y. 2006-07 ORDER DTD. 15-6-2012 AFTER CONSIDERING THE VARIOUS DECISIONS INCLUDING THE DEC ISION OF HONBLE JURISDICTIONAL HIGH COURT AND THE CONSISTENT VIEW O F THE TRIBUNAL HAS HELD VIDE PARA NO. 12 OF ITS ORDER AS UNDER:- 12. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS WHE REIN IT HAS BEEN CONSISTENTLY HELD THAT THE CBDT INSTRUCTION NO. 03/ 2011 DTD. 9-2-2011 WOULD APPLY EVEN TO PENDING APPEALS AND THE LD. D.R . AT THIS STAGE WAS UNABLE TO POINT OUT ANY CASCADING EFFECT, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AND, HENCE, THE TRIBUNAL HAS RIGHTLY DISMISSED THE REVENUES APPEAL VIDE ORDER D TD. 27-7-2011 (SUPRA). THE MISC. APPLICATION FILED BY THE REVENUE IS, THER EFORE, REJECTED. 6. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BRO UGHT ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING THE DECISION S OF THE HONBLE HIGH COURTS AND THE CONSISTENT VIEW OF THE TRIBUNAL HOLD THAT THE CBDT INSTRUCTION NO. 3/2011 DTD. 9-2-2011 WOULD APPLY EV EN TO PENDING APPEALS AND THE LD. D.R. AT THIS STAGE WAS UNABLE T O POINT OUT ANY CASCADING EFFECT, THEREFORE, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL IN DISMISSING THE REVENUES APPEAL VIDE OR DER DTD. 11-10-2011. 7 IN THE RESULT, THE MISC. APPLICATION FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST AUGUST, 2012. SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER SD/- (DINESH KUMAR AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 31-08-2012. RK MA NO. 174/MUM/2012 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (A) CONCERNED, MUMBAI 4. COMMISSIONER OF INCOME TAX- CONCERNED, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH C, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI