DCIT, CHENNAI V. Shri J . Harris Jayaraj, CHENNAI

MA 194/CHNY/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1809 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 28-03-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 18-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GURU BHASHYAM
• Assessee Lawyers: P CHANDRASEKAR
• Keywords: Tax effect
• Section: 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.P. NO. 194 /MDS/2013 AGAINST M.P.NO.17/MDS/2013 (IN ITA NO. 19 2 4 /MDS/ 20 1 1 ) ASSESSMENT YEAR : 2005-06 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II(5), CHENNAI VS SHRI J.HARRIS JAYARAJ, AP 1277, 77 TH STREET, 12 TH SECTOR, K.K.NAGAR, CHENNAI-600 078 [PAN : AA CPJ 8694 H ] (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI GURU BHASHYAM, JCIT RESPONDENT BY : SHRI P.CHANDRASEKAR, FCA DATE OF HEARING : 28-03-2014 DATE OF PRONOUNCEMENT : 15-05-2014 O R D E R PER VIKAS AWASTHY, J.M: THE MISCELLANEOUS PETITION HAS BEEN FILED BY THE RE VENUE FOR RECALLING OF THE ORDER OF TRIBUNAL DT.28-08-201 2 WHEREBY THE APPEAL OF THE REVENUE I.E., ITA NO.1924/MDS/2011 FO R THE M.P. NO. 194/M DS/2013 :- 2 -: AY.2005-06 WAS DISMISSED AS NOT MAINTAINABLE ON ACC OUNT OF LOW TAX EFFECT. THEREAFTER, THE REVENUE FILED M.P.NO.1 7/2013 FOR RECALLING OF THE SAID ORDER ON THE GROUND THAT THE APPEAL WAS WRONGLY DISMISSED AS THE TAX EFFECT IN THE APPEAL I S MORE THAN ` 3.00 LAKHS. THE DETAILS OF TAX PAYABLE ARE AS UNDE R: RELIEF ALLOWED BY CIT(A) ` 9,50,000/- TAX THEREON AT 30% ` 2,85,000/- ADD: SURCHARGE @ 10% ` 28,500/- ----------------- ` 3,13.500/- ADD: EDUCATION CESS @ 2% ` 6,270/- ----------------- TOTAL TAX PAYABLE ON ` 9,50,000/- ` 3,19,770/- THE TRIBUNAL VIDE ORDER DT.05-04-2013, DISMISSED TH E MISCELLANEOUS PETITION OF REVENUE ON THE GROUND, TH AT THE TAX EFFECT AS CONTEMPLATED IN CIRCULAR NO.3 OF 2011 DT .09-02-2011 DOES NOT INCLUDE SURCHARGE. 2. SHRI GURU BHASHYAM, REPRESENTING THE DEPARTMENT SUBMITTED THAT THE HONBLE SUPREME COURT OF INDIA I N THE CASE OF M.P. NO. 194/M DS/2013 :- 3 -: CIT VS. K.SRINIVASAN REPORTED AS 83 ITR 346 (SC) HAS HELD THAT THE TERM INCOME TAX AS DEFINED U/S.2 INCLUDES SUR CHARGE AND ADDITIONAL SURCHARGE WHENEVER PROVIDED. THE LD.DR FURTHER POINTED OUT THAT THE CO-ORDINATE BENCH OF THE TRIBU NAL IN M.P.NO.245/MDS/2012 IN IT(SS)A NO.26/MDS/2011 DECID ED ON 1 ST FEBRUARY, 2013 HAS ALLOWED THE PETITION OF REVENUE ON SIMILAR GROUNDS BY TREATING SURCHARGE AS PART OF THE TAX. 3. SHRI P.CHANDRASEKAR, REPRESENTING THE ASSESSEE C OULD NOT CONTROVERT THE SUBMISSIONS MADE BY THE LD.DR. 4. THE APPEAL OF THE ASSESSEE WAS DISMISSED BY PLAC ING RELIANCE ON CIRCULAR NO.3/2011 DT.09-02-2011 ON ACC OUNT OF LOW EFFECT. THE DETAILS OF TAX EFFECT HAVE ALREADY BEE N RE-PRODUCED ABOVE. THE ONLY ISSUE IS WHETHER SURCHARGE IS TO BE INCLUDED FOR DETERMINING THE EXTENT OF TAX EFFECT. THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. K.SRINIVASAN (SUPRA) HAS CLEARLY HELD THAT SURCHARGE IS PART OF INCOME TAX. M.P. NO. 194/M DS/2013 :- 4 -: 5. WE ARE OF THE CONSIDERED OPINION THAT THERE IS A N APPARENT ERROR IN DISMISSING THE APPEAL OF REVENUE ON ACCOUN T OF LOW TAX EFFECT. THE ORDER DT.28-08-2012 IS RECALLED. THE ASSESSEE HAD FILED CROSS-OBJECTIONS AGAINST THE APPEAL OF THE REVENUE. THE CROSS-OBJECTIONS OF THE ASSESS EE WERE ALSO DISMISSED ALONG WITH THE APPEAL. SINCE, THE ORDER IN APPEAL NO.1924/MDS/2011 IS RE-CALLED, THE APPEAL AND THE C ROSS- OBJECTIONS ARE RESTORED TO THEIR ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX THE DATE OF HEARING OF THE APPEAL A ND THE CROSS- OBJECTIONS IN THE DUE COURSE AND INFORM BOTH THE SI DES OF THE DATE FIXED. ORDER PRONOUNCED ON THURSDAY, THE 15 TH MAY 2014 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (VIKAS AWASTHY) JUDICIAL MEMBER DATED: 15 TH MAY, 2014 TNMM COPY TO: (1) PETITIONER (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G. F.