ITO 33(2)(2), V. KANCHAN A. LAD,

MA 233/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4121 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 13-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SANDEEP GOEL
• Assessee Lawyers: N O N E
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE SHRI SANJAY ARORA, A M AND SHRI AMIT SHUKLA , J M . / MA NO. 233/MUM/2015 (ARISING OUT OF ITA NO. 2015/MUM/2011 ) ( / ASSESSMENT YEAR: 2007 - 08 ) INCOME TAX OFFICER - 33(2)(2), [ERSTWHILE ITO - 25(3)(2)] C - 12, R. NO. 609, 6 TH FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400 05 1 / VS. KANCHAN A. LAD ROOM NO. 32, SHAFI MOHD CHAWL, GAONDEVI ROAD, POISAR, KANDIWALI (E), MUMBAI - 400 101 ./ ./ PAN/GIR NO. ACDPL 3042 L ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : DR. SANDEEP GOEL RESPONDENT BY : NON E / DATE OF HEARING : 11.03.2016 / DATE OF PRONOUNCEMENT : 11 .03.2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE REVENUE AGAINST THE ORDER U/S. 254(1) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) BY THE TRIBUNAL DATED 24.7.2014 IN ITS CASE FOR ASSESSMENT YEAR (A.Y.) 2007 - 08. 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE - RESPONDENT WHEN THE INSTANT PETITION WAS CALLED OUT FOR HEARING, NOR IS THERE ANY ADJOURNMENT APPLIC ATION THERE - 2 M A NO. 233/MUM/2015 (A.Y. 2007 - 08) ITO VS. KANCHAN A. LAD FROM ON RECORD. THE REVENUE VIDE ITS LETTER DATED 02.2.2016 HAS INFORMED THAT THE ASSESSEE IS NOT AVAILABLE AT THE ADDRESS ON RECORD AND , FURTHER , REQUESTED FOR INTIMATION OF THE ASSESSEES CURRENT ADDRESS TO ENABLE THE SERVICE OF THE NOTICE O F HEARING ON THE ASSESSEE. THOUGH THE SAID LETTER IS STATED AS WRITTEN IN RESPONSE TO A DIRECTION BY THE BENCH FOR THE SERVICE OF NOTICE OF HEARING ON THE ASSESSEE BY THE REVENUE, WE OBSERVE N O SUCH DIRECTION IN THE ORDER - SHEET, WITH THIS BEING IN FACT THE FIRST HEARING. THE FACT OF THE MATTER, HOWEVER, REMAINS THAT THERE HAS BEEN NO SERVICE OF NOTICE OF HEARING ON THE ASSESSEE. FURTHER , WE OBSERVE NON - REPRESENTATION TO BE A CONSTANT FEATURE IN THE INSTANT CASE , ASSESSMENT STAGE ONWARDS THERE BEING NO REP RESENTATION BY THE ASSESSEE THROUGHOUT , EVEN AS HER ADDRESS ON THE RECORD OF THE T RIBUNAL IS THE SAME AS THAT OF , OR PROVIDED BY , THE REVENUE. WE , ACCORDINGLY, PROCEED TO DECIDE THE PRESENT APPLICATION EX PARTE QUA THE ASSESSEE, AFTER HEARING THE PARTY BEF ORE US. 3. THE REVENUE PER ITS INSTANT APPLICATION HAS MADE A CASE FOR A RECALL OF THE IMPUGNED ORDER ON TWO GROUNDS, I.E., THAT THE TAX EFFECT OF THE REVENUES APPEAL IS AT RS.3,55,000/ - , AND NOT RS.2,62,505/ - , AS STATED BY THE TRIBUNAL AT PARA 2 OF IT S ORDER. TWO, THAT THE HONBLE APEX COURT H AS PER ITS DECISION IN THE CASE OF CIT VS . SUMAN DHAMIJA (IN CIVIL APPEAL NO. 4919 - 4920 OF 2015 DATED 01.7.2015 ) HELD THAT THE BOARDS INSTRUCTION U/S. 268A (I.E., NO. 279 DATED 27.8.2015) CANNOT BE APPLIED RETRO SPECTIVELY, I.E., SHALL NOT APPLY TO PENDING APPEALS BY T HE REVENUE . THE MATTER , EVEN AS CONCEDED TO BY THE LD. DEPARTMENTAL REPRESENTATIVE (DR) DURING HEARING , IS NOW COVERED BY THE EXTANT CIRCULAR BY THE BOARD, I.E., NO. 21/2015 DATED 10.12.2015. 4 . WE HAVE HEARD THE PART Y BEFORE US , AND PERUSED THE MATERIAL ON RECORD. AS AFORE - STATED, THE MAINTAINABILITY OF AN APPEAL BY THE REVENUE BEFORE THE APPELLATE AUTHORITIES, INCLUDING THE APPELLATE TRIBUNAL , WOULD, IN TERMS OF SECTION 268A , BE GOVERNED BY CIRCU LAR/INSTRUCTION /S ISSUED BY THE BOARD THERE - UNDER FROM TIME TO TIME. I TS RECENT CIRCULAR DATED 10.12.2015 (SUPRA) , MAKING A DEPARTURE FROM ITS 3 M A NO. 233/MUM/2015 (A.Y. 2007 - 08) ITO VS. KANCHAN A. LAD EARLIER CIRCULARS, PROVIDES FOR ITS APPLICATION RETROSPECTIVELY, SO THAT IT SHALL HAVE APPLICATION TO ITS APPEALS PENDING HEARING BEFORE THE DIFFERENT APPELLATE AUTHORITIES . E VEN A RECALL OF THE IMPUGNED ORDER AND THE RESTORATION OF THE REVENUES INSTANT APPEAL , WOULD THEREFORE BE OF LITTLE CONSEQUENCE IN - AS - MUCH AS THE REVENUES APPEAL IS NOT MAINTAINABLE AS ON DATE , I.E., 10/12/2015 ONWARDS , WHICH REVISES THE THRESHOLD LIMIT FOR THE MAINTAINABILITY OF APPEALS BEFORE THE TRIBUNAL TO RS. 10 LACS . AS SUCH, A RECALL OF THE REVENUES APPEAL FOLLOWING THE DECISION BY THE APEX COURT IN SUMAN DHAMIJA (SUPRA), REQUIRING A RE GARD FOR THE TERMS OF THE BOARDS CIRCULAR /INSTRUCTION ISSUED U/S. 268A , WOULD BE TO NO MOMENT. RATHER, THE SAID DECISION WOULD ITSELF , IN VIEW OF THE NEW CIRCULAR, ISSUED SINCE, OPERATE TO MAKE THE REVENUES APPEAL BEFORE THE TRIBUNAL NON - MAINTAINABLE. W E , ACCORDINGLY , DO NOT CONSIDER IT RELEVANT TO GO INTO THE MERITS OF THE REVENUES APPLICATION, CLAIMING THE TAX EFFECT OF THE INSTANT APPEAL TO BE AT RS.3.55 LACS AND, THEREFORE, MAINTAINABLE IN TERMS OF THE RELEVANT CIRCULAR, I.E., AS APPLICABLE AT THE T IME OF THE FILING THE APPEAL BY THE REVENUE, BEING INSTRUCTION NO. 3/291 DATED 09.2.2011 ; TH E SAID APPEAL BEING FILED WITH THE TRIBUNAL ON 11.3.2011. WE , ACCORDINGLY , DECLINE INTERFERENCE. 4. IN THE RESULT, THE R EVENUE S MISCELLANEOUS PETITION IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 11 , 201 6 SD/ - SD/ - ( AMIT SHUKLA ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 11 . 0 3 .201 6 . . ./ ROSHANI , SR. PS 4 M A NO. 233/MUM/2015 (A.Y. 2007 - 08) ITO VS. KANCHAN A. LAD / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LIC ANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI