DCIT 8(1), V. BIJIS HOTEL (I) P.LTD,

MA 222/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0888 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-09-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 24-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: KOE NAHI
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI .. , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM MA NO.222/MUM/2013 (ARISING OUT OF ITA NO. 9113/MUM/2010) ASSESSMENT YEAR 2002-03 DY. CIT-8(1), ROOM NO.210/260A, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 / VS. BIJIS HOTEL (INDIA) PRIVATE LIMITED 353-A, VASU SMRUTI, 13 TH ROAD, KHAR (WEST), MUMBAI-400 052 ./ ./PAN/GIR NO. AAACB 1793 J ( /APPELLANT ) : ( !' / RESPONDENT ) # / APPELLANT BY : SHRI SURENDRA KUMAR !' $ # / RESPONDENT BY : SHRI KOE NAHI % &'( $ )* / DATE OF HEARING : 27.09.2013 +,- $ )* / DATE OF PRONOUNCEMENT : 27.09.2013 . / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS APPLICATION BY THE REVENUE QUA THE ORDER BY THE TRIBUNAL U/S. 254(1) OF THE INCOME TAX ACT 1961 (T HE ACT HEREINAFTER) DATED 06.02.2013, DISMISSING THE REVENUES APPEAL IN LIMINE , BEING NOT MAINTAINABLE U/S.268A OF THE INCOME TAX ACT, 1961 (THE ACT HER EINAFTER) READ WITH CBDT INSTRUCTION NO.3/2011 DATED 09.02.2011. 2. THE REVENUE HAS NOW MOVED THE INSTANT PETITION, CLAIMING THAT THE TAX EFFECT OF ITS APPEAL WORKS TO RS.3,09,203/- , SO THAT BEING MORE THAN THE MONETARY LIMIT OF MA.NO. 222/M/13 (A.Y. 2002-03) DY. CIT VS. BIJIS HOTEL (INDIA) PRIVATE LIMITED 2 RS.3 LACS PRESCRIBED VIDE THE CBDT INSTRUCTION DATE D 09.02.2011 (SUPRA), ITS APPEAL STANDS WRONGLY DISMISSED BY THE TRIBUNAL AND, ACCOR DINGLY, BE RECALLED FOR A DECISION ON MERITS. 3. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE- RESPONDENT, EVEN AS THE NOTICE OF HEARING FOR TODAY INSTANT WAS ISSUED PER REGISTE RED POST ON 20.08.2013, AND WHICH HAS NOT BEEN RETURNED BACK UNSERVED. ACCORDINGLY, H EARING IN THE MATTER WAS PROCEEDED WITH. WE HAVE PERUSED THE INSTRUCTION NO. 3 OF 2011 (SUPRA) (REPORTED AT [2011] 332 ITR 1 (STATUTES)), FOLLOWING WHICH THE T RIBUNAL VIDE ITS IMPUGNED ORDER DISMISSED THE REVENUES APPEAL. THE SAME PRESCRIBES A LIMIT OF RS.3 LACS FOR APPEALS FILED BY THE REVENUE BEFORE THE APPELLATE TRIBUNAL (PARA 3). VIDE PARA 4 THEREOF, THE TAX EFFECT HAS BEEN EXPLAINED, AND WHICH IN CASE OF PENALTY ORDERS, IS THE QUANTUM OF PENALTY DELETED OR REDUCED BY THE ORDER APPEALED AG AINST. THE PENALTY IN THE INSTANT CASE HAS BEEN LEVIED AT 100% OF THE TAX SOUGHT TO B E EVADED, I.E., AT RS.9,82,302/-, ON DISALLOWANCES/ADDITIONS AGGREGATING TO RS.27,51,545 /-. THOUGH THE ENTIRE PENALTY STOOD DELETED BY THE LD. CIT(A), THE REVENUE PER IT S APPEAL UNDER REFERENCE AGITATES THE SAID DELETION ONLY QUA TWO ADJUSTMENTS, VIZ. FOR RS.7,71,114/-, BEING DISA LLOWANCE OF DIRECT EXPENSES, AND RS.95,000/- ADDED AS UNEXPL AINED CASH CREDIT U/S.68. THE TOTAL WORKS TO RS.8,66,114/- ON WHICH THE PROPORTIONATE T AX WOULD WORKS TO RS.3,09,203/- , AS CLAIMED BY THE REVENUE VIDE PARA 3.2 OF ITS APPL ICATION. ACCORDINGLY, WE FIND THE CONTENTION RAISED BY IT TO BE CORRECT, SO THAT THE REVENUES APPEAL WOULD NOT BECOME UN-MAINTAINABLE U/S.268A OF THE ACT READ WITH CBDT INSTRUCTION NO.3 OF 2011 DATED 09.02.2011 (SUPRA). WE, THEREFORE, ADMITTING A MIST AKE BY THE TRIBUNAL, RECALL THE IMPUGNED ORDER. THE REGISTRY IS DIRECTED TO FIX THE DATE OF HEARING IN THE REGULAR COURSE. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 27, 2013 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER % ( MUMBAI; /& DATED : 27.09.2013 MA.NO. 222/M/13 (A.Y. 2002-03) DY. CIT VS. BIJIS HOTEL (INDIA) PRIVATE LIMITED 3 '.&../ ROSHANI , SR. PS !'#$ %$&' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. % 0) ( ) / THE CIT(A) 4. % 0) / CIT CONCERNED 5. 3'45 !)&67 , * 67- , % ( / DR, ITAT, MUMBAI 6. 589 :( / GUARD FILE ' / BY ORDER, (/') * (DY./ASSTT. REGISTRAR) , % ( / ITAT, MUMBAI