DCIT 3(3), V. SHIMNIT FINANCE INVESTMENT P. LD,

MA 217/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1297 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 18-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: GOVIND S REPRESENTATIVE
• Keywords: Business income; Depreciation; Tax effect

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND SANJAY ARORA (AM) . . , , _ MISC. APPLICATION NOS.215 AND 216/MUM/2013 ARISING OUT OF ./I.T.A. NOS.1160/MUM/2012 & 1948/MUM/2012 ( / ASSESSMENT YEARS : 2007-08 & 2008-09) DY. COMMISSIONER OF INCOME TAX,3(3), ROOM NO.668, 6 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 / VS. M/S SHAH SPINNERS P. LTD., 8TH FLOOR, REGENT CHAMBERS, NARIMAN POINT, MUMBAI-21 ( ( / APPLICANT) .. ( )( / RESPONDENT) ./ ./PAN/GIR NO. : AAFCS3007D MISC. APPLICATION NOS.217/MUM/2013 ARISING OUT OF ./I.T.A. NO.2091/MUM/2012 ( / ASSESSMENT YEARS : 2007-08) DY. COMMISSIONER OF INCOME TAX,3(3), ROOM NO.668, FLOOR,6 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 / VS. M/S SHIMNIT FINANCE INVESTM ENT P.LTD., 8TH FLOOR, REGENT CHAMBERS, NARIMAN POINT, MUMBAI-21 ( ( / APPLICANT) .. ( )( / RESPONDENT) ./ ./PAN/GIR NO. : AAKCS4758L ( /: REVENUE BY SHRI SURENDRA KUMAR )( , / ASSESSEES BY SHRI GOVIND, ASSESSEES REPRESENTATIVE , / / DATE OF HEARING : 13.12.2013 , / /DATE OF PRONOUNCEMENT : 13.12.2013 / O R D E R PER B.R.MITTAL, JM: BY THESE THREE MISCELLANEOUS APPLICATIONS, THE DE PARTMENT HAS PRAYED TO RECALL THE ORDER DATED 7.12.2012 PASSED IN THE ABOVE APPEA LS STATING THAT THE TRIBUNAL HAD MISC. APPLICATION NOS.215 TO 217/MUM/2013 2 DISMISSED THE APPEALS OF THE DEPARTMENT ON THE GROU ND THAT TAX EFFECT INVOLVED IN ALL THE THREE ABOVE MENTIONED APPEALS IS LESS THAN RS.3 LAK HS IN EACH OF THE APPEAL. THE DEPARTMENT HAS STATED THAT THE ISSUE INVOLVED IN T HESE APPEALS IS IN RESPECT OF THE RENTAL INCOME TREATING UNDER THE HEAD INCOME FROM HOUSE PROPERTY INSTEAD OF UNDER THE HEAD INCOME FROM BUSINESS AS CLAIMED BY ASSES SEE. THIS RESULTED IN THE DISALLOWANCE OF DEPRECIATION ALLOWANCE AND ADMINIST RATIVE EXPENSES. THAT THE TRIBUNAL ONLY CONSIDERED THE POSITIVE TAX EFFECT WHICH WAS A RISING OUT OF TREATING THE BUSINESS INCOME AS INCOME FROM HOUSE PROPERTY AND NOT CONSID ERING THE NOTIONAL TAX EFFECT DUE TO DISALLOWANCE OF DEPRECIATION AND ADMINISTRATIVE EXPENSES. THAT THE ASSESSEE ALSO CLAIMED LOSS AND ABOVE DISALLOWANCE ON DEPRECIATION AND ADMINISTRATIVE EXPENSES. HENCE TOTAL NOTIONAL TAX EFFECT IS ABOVE RS.3 LA KHS IN EACH OF THE APPEAL FILED BY DEPARTMENT. THE DEPARTMENT HAS STATED THAT THIS IS AN ERROR COMMITTED BY THE TRIBUNAL AND THE SAME BE RECTIFIED BY RE-CALLING THE SAID OR DER OF THE TRIBUNAL DATED 7.12.2012. 2. ALL THE THREE APPLICATIONS WERE FIXED FOR HEARIN G ON 13.12.2013. ON BEHALF OF THE ASSESSEE AN ADJOURNMENT APPLICATION WAS PLACED BUT THE SAME WAS REJECTED CONSIDERING THE CONTENTS OF THE APPLICATION AND THE MATERIAL P LACED ON RECORD. 3. AT THE TIME OF HEARING, LD. DR REITERATED THE AB OVE FACTS. WE ARE SATISFIED THAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF TRI BUNAL DATED 7.12.2012 IN DISMISSING THE APPEALS OF THE DEPARTMENT ON THE BASIS OF CBDT CIRCULAR NO.3 OF 2011 DATED 9.2.2011 CONSIDERING THAT THE TAX EFFECT IN EACH O F THE APPEAL IS LESS THAN RS.3 LAKHS. HENCE, WE RECALL THE SAID ORDER OF TRIBUNAL DATED 7.12.2012 AND DIRECT THE REGISTRY TO FIX THESE APPEALS FOR HEARING ON 27.1.2014 FOR HEAR ING THE APPEALS ON MERITS. SINCE THE ABOVE DATE WAS COMMUNICATED IN THE PRESENCE OF LD. DR AS WELL AS REPRESENTATIVE OF ASSESSEE, IT WAS MADE CLEAR THAT NO FRESH NOTICE OF HEARING WILL BE SENT OF THE DATE FIXED FOR HEARING I.E. 27.1.2014. 4. IN THE RESULT, ALL THE THREE MISCELLANEOUS APPL ICATIONS OF THE DEPARTMENT ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON T HE 13TH DECEMBER, 2013 , 2 3 13 TH DECEMBER, 2013 , SD SD ( / SANJAY ARORA) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MISC. APPLICATION NOS.215 TO 217/MUM/2013 3 MUMBAI: . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. ( / THE APPELLANT 2. )( / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED 4. : / CIT CONCERNED 5. ; )= , / = , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER TRUE COPY (ASSTT. REGISTRAR) / = , /ITAT, MUMBAI