ITO 17(3)(4), V. VIJAY K SAKPAL,

MA 227/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9152 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2006-2007
• Appeal Filed On: 10-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (J.M.) AND SHRI B. RAMAKOTAIAH (A.M.) M.A. NO. 227/MUM/2012 ARISING OUT OF ITA NO. 5505/MUM/2009 ASSESSMENT YEAR : 2006-07 INCOME TAX OFFICER, WD. 17 (3)(4), ROOM NO. 615, PIRAMAL CHAMBERS, PAREL, MUMBAI. 400 012. VS. SHRI VIJAY K. SAKPAL, 117, VERSOVA SHITAL, VASWANI MARG, SEVEN BUNGLOW, ANDHERI (W), MUMBAI- 58. PAN : AFZPS1764B (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI OM PRAKASH MEENA RESPONDENT BY : NONE DATE OF HEARING 28-9-2012 DATE OF PRONOUNCEMENT 28-9-2012 O R D E R PER DINESH KUMAR AGARWAL, J.M. THIS MISC. APPLICATION DTD. 9-4-2012 FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DTD. 29-9-2011 PASSED BY THE TRIBUNAL IN ITA NO. 5505/MUM/2010 FOR THE A.Y. 2006-07 WHEREIN THE TRIBUNAL HAS DISMISSED THE REVENUES APPEAL ON THE GROUND THAT T HE TAX EFFECT IS LESS THAN RS. 3 LACS. 2. AT THE TIME OF HEARING, NONE ATTENDED ON BEHALF OF THE ASSESSEE NOR FILED ANY APPLICATION FOR THE ADJOURNMENT OF THE CA SE, THEREFORE, IT WAS MA NO. 227/MUM/2012 2 DECIDED TO DISPOSE OF THE MISC. APPLICATION EX PART E, QUA THE ASSESSEE, ON MERITS, AFTER HEARING THE LD. D.R. 3. IN THE MISC. APPLICATION, IT WAS INTER ALIA SUBM ITTED BY THE REVENUE THAT IN ACCORDANCE WITH THE INSTRUCTION NO. 05/2008 DTD. 15-5-2008 APPLICABLE AT THE RELEVANT TIME, THE MONETARY LIMIT FOR FILING APPEAL TO THE ITAT WAS RS. 2,00,000/- IN FORCE WHEN THE APPEAL WA S FILED ON 7-7-2010. IT WAS FURTHER SUBMITTED THAT INSTRUCTION NO. 3/201 1 DTD. 9-2-2011 WILL APPLY TO APPEALS FILED ON OR AFTER 9-2-2011 AND THE CASES WHERE APPEALS HAVE BEEN FILED BEFORE 9-2-2011 WILL BE GOVERNED BY THE INSTRUCTIONS OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED, T HEREFORE, THE TRIBUNAL HAS COMMITTED A MISTAKE IN APPLYING THE INSTRUCTION NO. 03/2011 DTD. 9- 2-2011 WHICH ARE APPLICABLE ON OR AFTER 9-2-2011 AN D, THEREFORE, THE ORDER PASSED BY THE TRIBUNAL BE RECALLED. 4. AT THE TIME OF HEARING, THE LD. D.R. SUBMITS THA T FOR THE REASONS AS MENTIONED IN THE MISC. APPLICATION FILED BY THE REV ENUE, THE ORDER PASSED BY THE TRIBUNAL BE RECALLED. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE TRIBUNAL HAS RIGHTLY APPLIED THE CBDT INSTRUCTION NO. 3/2011 DTD . 9-2-2011. RECENTLY, THE TRIBUNAL IN M.A. NO. 174/MUM/2012 ARI SING OUT OF ITA NO. 5735/MUM/2009 FOR A.Y. 2006-07 ORDER DTD. 31-8-2012 AFTER MA NO. 227/MUM/2012 3 CONSIDERING THE VARIOUS DECISIONS INCLUDING THE DEC ISION OF HONBLE JURISDICTIONAL HIGH COURT IN (I) CIT VS. M/S VIREND RA & CO. IN INCOME TAX APPEAL NO. 987 OF 2000 DTD. 20-7-2012 (BOM) AND (I I) CIT VS. SMT. VIJAYA V. KAVEKAR IN TAX APPEAL NO. 78 & 76 OF 2007 DTD. 2 9-7-2011 (BOM) AND THE ORDER OF THE TRIBUNAL IN M.A. NO. 41/MUM/2012 A RISING OUT OF ITA NO. 2910/MUM/2010 FOR A.Y. 2006-07 DTD. 15-6-2012 W HEREIN IT WAS HELD IN PARA 12 OF THE ORDER THAT R ESPECTFULLY FOLLOWING THE ABOVE DECISIONS WHEREIN IT HAS BEEN CONSISTENTLY HELD THA T THE CBDT INSTRUCTION NO. 03/2011 DTD. 9-2-2011 WOULD APPLY EVEN TO PENDI NG APPEALS AND THE LD. D.R. AT THIS STAGE WAS UNABLE TO POINT OUT ANY CASCADING EFFECT, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE IN THE ORDER O F THE TRIBUNAL AND, HENCE, THE TRIBUNAL HAS RIGHTLY DISMISSED THE REVENUES AP PEAL VIDE ORDER DTD. 27-7-2011 (SUPRA). THE MISC. APPLICATION FILED BY THE REVENUE IS, THEREFORE, REJECTED HAS HELD THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. 6. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BRO UGHT ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING THE DECISION S OF THE HONBLE HIGH COURT AND THE CONSISTENT VIEW OF THE TRIBUNAL HOLD THAT THE CBDT INSTRUCTION NO. 3/2011 DTD. 9-2-2011 WOULD APPLY EV EN TO PENDING APPEALS AND THE LD. D.R. AT THIS STAGE WAS UNABLE T O POINT OUT ANY CASCADING EFFECT, THEREFORE, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL IN DISMISSING THE REVENUES APPEAL VIDE OR DER DTD. 29-9-2011. MA NO. 227/MUM/2012 4 7. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER, 2012 SD/- (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER SD/- (DINESH KUMAR AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 28-9-2012. RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (A) CONCERNED, MUMBAI 4. COMMISSIONER OF INCOME TAX- CONCERNED, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH I, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI