Asstt.commissioner of Income -tax -Circle -8, Nagpur V. M/s Maharana Bose & Associates, Nagpur

MA 2/NAG/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0039 (ITAT-NAGPUR)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 20-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H WANARE
• Keywords: Tax effect
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , (E - COURT), MUMBAI BEFORE SHRI R.K.GUPTA , J M & SHRI RAJENDRA , A M MA NO S . 0 2 / NAG /20 11 [ (ARISING OUT OF ITA NO. 180 /NAG /20 09 ) (AY - 2006 - 07)] ACIT, CIR - 8 , NAGPUR VS. M/S MAHARANA & BOSE ASSOCIATES , 1 ST FLOOR, SHIVHARE BHAVAN, KOSHTIPURA, SITABULDI, NAGPUR. PAN NO.AAIFM 8077 H ( APP LICANT ) .. ( RESPONDENT ) MA NO S . 0 3 / NAG /20 11 [ (ARISING OUT OF ITA NO. 201 NAG /20 09 ) (AY - 2006 - 07)] ACIT, AKOLA CIRCLE . VS. HARISH RATENLAL ALIMCHANDANI, PROP. PRASHANT LIQUOR AGENCY, CHANDEKAR BHAWAN, M.G.ROAD, AKOLA. PAN NO. ABAPA 2959 B ( APP LICANT ) .. ( RESPONDENT ) MA NO S . 0 5 / NAG /20 11 [ (ARISING OUT OF ITA NO. 99 /NAG /20 10 ) (2007 - 08)] ITO, WARD - 2(4), NAGPUR VS. SHR I HARVINDERSHING MOHANSINGH KOHLI, FLAT NO. 102, GURUNANAK APARTMENT NO. 2, ASHOK NAGAR, KAMPTEE ROAD, NAGPUR PAN NO. AEKPK 5979 K ( APP LICANT ) .. ( RESPONDENT ) REVENUE BY : MR. H.WANARE & MR. PRAKASH MANE ASSESSEE BY : NONE APPEARED IN MA NO.2/11) MR. K.P.DEWANI (IN MA NO.3/11) & MR. HARISH BANAJA (IN MANO.5/11) DATE OF HEARING : 1 ST FEB . , 201 3 DATE OF PRONOUNCEMENT : 13. 02. 201 3 O R D E R PER SHRI R.K.GUPTA, JM : TH ESE THREE MISCELLANEOUS APPLICATION S HA VE BEEN PREFER RED BY THE DEPARTMENT BEFORE THE ITAT NAGPUR BENCH, NAGPUR, ARISING OUT OF THE RESPECTIVE ORDERS PASSED BY THE TRIBUNAL IN ITA NO. 180 / NAG /20 09, M.A NO S . 2,3&5 /20 1 1 2 ITA NO. 201/NAG/2009 AND ITA NO. 99/NAG/2010, RESPE C TIVELY , WHICH HA VE BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE S E APPEALS OF THE DEPARTMENT WERE DISMISSED BY THE TRIBUNAL IN LIMINE FOR THE REASON THAT TAX EFFECT IN THESE APPEALS WERE LESS THAN RS. 3 LAKHS. NOW, THE DEPARTMENT HAS FILED MISCELLANEOUS APPLICATION IN ALL THESE CASES STATING THAT AT THE TIME OF FILING OF THESE APPEALS BEFORE THE TRIBUNAL, THE LIMIT OF TAX EFFECT WAS OF RS .2 LAKHS AS IF THE TAX EFFECT WAS LESS THAN 2 LAKHS THEN THE APPEALS OF THE DEPARTMENT MAY NOT BE ENTERTAINED. IT IS FURTHER STATED THAT LIMIT OF RS. 3 LAKHS IS INCREASED W.E.F. 9 - 2 - 2011 A ND, THEREFORE, THE APPEALS OF THE DEPARTMENT SHOULD HAVE BEEN DECIDED ON MERIT. 3 . LEARNED DR, WHO APPEARED ON BEHALF OF THE DEPARTMENT HAS PLACED RELIANCE ON THE CONTENTS OF THE MISCELLANEOUS APPLICATION IN THESE THREE APPEALS. 4 . SHRI K.P.DEWANI, ADVOC ATE APPEARED ON BEHALF OF SHRI H ARISH RATENLAL ALIMCHANDANI (MA NO.3/NAG/2011), STATED THAT OF COURSE THE LIMIT OF RS.3 LAKHS HAS BEEN INCREASED BY CBDT INSTRUCTION NO.3, DATED 9 - 2 - 2011, HOWEVER, APPEALS OF THE DEPARTMENT WERE PENDING ON 9 - 2 - 2011, THEREFOR E, THE LIMIT OF RS. 3 LAKHS WAS TO BE CONSIDERED FOR DECIDING THE APPEALS ON MERIT OR DISMISSING THE SAME IN LIMINE AS THEY WERE NOT MAINTAINABLE IN VIEW OF THE PROVISION OF SECTION 268 - A(3) BECAUSE THE TAX EFFECT WAS LESS THAN RS. 3 LAKHS. IT WAS FURTHER SU BMITTED THAT IN SIMILAR CIRCUMSTANCES, IN CASE OF MAHAV IR STEEL INDUSTRIES LTD., PASSED IN ITA NO. 1340/PN/2010 , THE PUNE BENCH OF M.A NO S . 2,3&5 /20 1 1 3 THE TRIBUNAL HAS DECIDED THE IDENTICAL ISSUE AND HAS HELD THAT LIMIT OF RS. 3 LAKHS WILL BE APPLICABLE ON ALL APPEALS PENDING B EFORE THE TRIBUNAL. THE BENCH HAS CONSIDERED THIS ASPECT AS TO WHETHER THE APPEALS WERE FILED BEFORE 9 - 2 - 2011 OR AFTER 9 - 2 - 2011, DOES NOT MA TT ER, BECAUSE THE LIMIT INCREASED BY THE CBDT INSTRUCTION NO. 3, DATED 9 - 2 - 2011 IS CLARIFICATORY IN NATURE, THEREFORE , THE LIMIT WILL BE APPLICABLE ON APPEALS PENDING BEFORE THE TRIBUNAL . WHILE HOLDING SO, THE PUNE BENCH OF THE TRIBUNAL HAS CONSIDERED THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MADHUKAR K. INAMDAR (HUF), 318 ITR 149 AND IN THE C ASE OF CIT VS. PITHWA ENGINEERING WORKS, 276, ITR 519 (BOM) , BY WHICH IT HAS BEEN HELD THAT THE LIMIT INCREASED BY THE CBDT INSTRUCTION NO. 3, DATED 9 - 2 - 2011, WILL BE APPLICABLE ON ALL PENDING CASES BEFORE THE TRIBUNAL . SIMILAR VIEW HAS BEEN EXPRESSED BY TH E BOMBAY BENCH OF THE TRIBUNAL IN THE CASE OF SHRI ASHOK G. DHANDHARIAI, PASSED IN ITA NO. 2460 /MUM/ 2010 , VIDE ORDER DATED 28 - 2 - 2011 . THEREFORE, IT WAS SUBMITTED THAT THERE IS INFIRMITY IN THE ORDER OF THE TRIBUNAL, WHO DISMISSED THE APPEALS OF THE DEPARTM ENT IN LIMINE. 5 . AFTER CONSIDERING THE ORDER OF THE TRIBUNAL IN ALL THESE THREE CASES AND MISCELLANEOUS APPLICATION ALONG WITH ARGUMENTS OF SHRI K.P.DEWANI, ADVOCATE, WHO APPEARED IN ONE OF THESE CASES, WE FIND THAT THE MISCELLANEOUS APPLICATIONS OF THE DEPARTMENT ARE LIABLE TO BE DISMISSED AS THIS ISSUE HAS ALREADY BEEN DECIDED BY THE HON BLE BOMBAY HIGH COURT IN TWO CASES MENTIONED ABOVE, WHICH WERE M.A NO S . 2,3&5 /20 1 1 4 FOLLOWED BY THE PUNE BENCH OF THIS TRIBUNAL IN THE CASE OF MAHAV IR STEEL INDUSTRIES LTD. (SUPRA) . THE PUN E BENCH IN PARA 7 HAS FINALLY CONCLUDED IN THE FOLLOWING MANNER : - 7. FOLLOWING THE AFORESAID PRECEDENT, THE CAPTIONED APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED IN VIEW OF CBDT I NSTRUCTION NO. 3 DATED 9.2.201 1 (SUPRA) AS THE TAX EFFECT WITH RE SPECT TO THE QUANTUM OF RELIEF ALLOWED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) IN THE IMPUGNED YEAR IS BELOW AS 3 IAKHS AND IT HAS NOT BEEN SHOWN THAT THE APPEAL FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN PARA 8 OF THE CBDT INSTRUCTION (SUPRA). WE O RDER ACCORDINGLY. 6 . SIMILAR FACTS ARE INVOLVED IN THESE THREE CASES. THEREFORE, IN VIEW OF THE DECISION OF THE TRIBUNAL IN CASE OF MAHAV IR STEEL INDUSTRIES LTD. (SUPRA) , WHICH IS IN CONSONANCE WITH THE ORDER OF THE HON BLE BOMBAY HIGH COURT, WE DISMISS ALL THE MISCELLANEOUS APPLICATION S OF THE DEPARTMENT IN LIMINE. 7 . RESULTANTLY , ALL THE MISCELLANEOUS APPLICATION S FILED BY THE DEPARTMENT ARE DISMISSED . ORDER PRONOUNCED IN THE E - COURT ON THIS 1 3 TH D AY OF FEB . , 201 3 . SD/ - SD/ - ( RAJENDRA ) ( R. K.GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED : 1 3/02 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR. 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR. 6. GUARD FILE. //TRUE COPY// BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI