ASST CIT CIR 9, V. HUF INDIA P. LTD,

MA 195/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3872 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 25-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VACHANPATI TRIPATHI
• Keywords: Audit objection; Tax effect
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER MA NO.195/M/2015 (ARISING OUT OF ITA NO.5275/M/2013 DATE OF DECISION : 16.02.2015) ASSESSMENT YEAR: 2009-10 DCIT, CIRCLE 3(1) ROOM NO.607, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI - 400020 VS. M/S. HUF INDIA PVT. LTD., GAT NO.432 TO 434, MEDANKARWADI, ALANDI PHATA, CHAKAN, TAL. KHED, PUNE 410501. PAN: AABCH9173K (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SMT DEEPA KHARE, A.R. REVENUE BY : SHRI VACHANPATI TRIPATHI, D.R. DATE OF HEARING : 29.01.2016 DATE OF PRONOUNCEMENT : 29.01.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FIL ED BY THE REVENUE PLEADING THAT A MISTAKE APPARENT ON RECORD HAS OCCU RRED IN ORDER DATED 16.02.2015 BY THIS TRIBUNAL PASSED IN ITA NO.5275/M /2013 RELEVANT A.Y. 2009-10. 2. IT HAS BEEN PLEADED THAT THE APPEAL OF THE REVEN UE HAS BEEN DISMISSED VIDE ABOVE STATED ORDER DATED 16.02.2015, RELYING U PON THE CIRCULAR NO.3/2011 DATED 09.02.2011, ON THE GROUND THAT THE TAX EFFECT IN THE APPEAL OF THE REVENUE WAS LESS THAN RS.3 LAKHS, HOWEVER, THE TAX EFFECT IN THE APPEAL OF THE REVENUE WAS WORKED OUT AT RS.3.11 LAKHS. THEREFORE , THE SAID CIRCULAR NO.3/2011 DATED 09.02.2011 WAS NOT APPLICABLE. MA NO.195/M/202015 (ARISING OUT OF ITA NO.5275/M/2013 DATE OF DECISION : 16.02.2015) M/S. HUF INDIA PVT. LTD. 2 3. HOWEVER, BOTH THE LD. REPRESENTATIVES OF THE PAR TIES HAVE FAIRLY AGREED THAT NOW AS PER THE LATEST CBDT CIRCULAR NO.21/2015 DATED 10/12/2015, THE TAX LIMIT FOR FILING THE APPEAL BY THE REVENUE HAS BEEN INCREASED TO RS.10 LAKHS AND THE SAID CIRCULAR HAS BEEN MADE APPLICABLE RETR OSPECTIVELY TO THE PENDING APPEALS ALSO. THE RELEVANT PORTION OF THE CIRCULAR DATED 10/12/2015 (SUPRA) IS REPRODUCED BELOW:- 3.HENCEFORTH APPEALS/SLPS SHALL NOT BE FILED IN CAS ES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER:- SL. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMI TS (IN RS.) 1. BEFORE APPELLATE TRIBUNAL 10,00,000 2. BEFORE HIGH COURT 20,00,000 3. BEFORE SUPREME COURT 25,00,000 ................................................ ................................................... ....................... 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE B EEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME I N RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREI NAFTER REFERRED TO AS 'DISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUD E ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISP UTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER 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. I N CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR C IRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN A SSETS/ BANK ACCOUNTS. 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE S HALL NOT APPLY TO WRIT MA NO.195/M/202015 (ARISING OUT OF ITA NO.5275/M/2013 DATE OF DECISION : 16.02.2015) M/S. HUF INDIA PVT. LTD. 3 MATTERS AND DIRECT TAX MATTERS OTHER THAN INCOME TA X. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVER NED BY RELEVANT PROVISIONS OF STATUTE & RULES. FURTHER, FILING OF APPEAL IN CA SES OF INCOME TAX, WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUC H AS THE CASE OF REGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT, 1961, SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AN D DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR C ASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIB UNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWAL 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. (UNDERLINED FOR EMPHASIS BY US) 4. IN VIEW OF THIS, THE APPEAL OF THE REVENUE IS NO T MAINTAINABLE EVEN THE TAX EFFECT IN THIS APPEAL IS RS.3.11 LAKHS IN THE L IGHT OF THE CBDT CIRCULAR NO.21/2015 DATED 10/12/2015. THEREFORE, THE APPLIC ATION OF THE REVENUE HAS BECOME INFRUCTUOUS AND THE SAME IS ACCORDINGLY DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.01.2016. SD/- SD/- (ASHWANI TANEJA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 29.01.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.