ASST CIT, V. ADITYA AGARWAL,

MA 251/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9053 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 23-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, A, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL, JUDICIAL MEMBER A ND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO: 251/MUM/2012 ARISING OUT OF : 5654/MUM/2008 ASSESSMENT YEAR : 2005-06 ASSTT. COMMISSIONER OF INCOME TAX -13(3) ROOM NO.430, 4 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD NEW MARINE LINES MUMBAI-400 020. SHRI ADITYA AGARWAL 401, VYAPAR BHAVAN 368/370 NARSI NATHA STREET MASJID (W) MUMBAI-400 009. PAN NO.: AAAPA 8348 P (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI MOHIT JAIN RESPONDENT BY : SHRI ANUJ KISNADWALA DATE OF HEARING : 31.08.2012 DATE OF PRONOUNCEMENT : 31.08.2012 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVE NUE REQUESTING FOR AMENDMENT OF THE ORDER DATED 27.10.20 11 OF THE TRIBUNAL. IT HAS BEEN POINTED OUT THAT THERE HAS BEEN APPARENT MISTAKE IN DISMISSING THE APPEAL OF THE REVENUE ON THE BASIS OF TAX EFFECT. 2. THE TRIBUNAL IN THE ORDER DATED 27.10.2011 HAD D ISMISSED THE APPEAL OF THE REVENUE ON THE GROUND THAT TAX EFFECT WAS LESS THAN RS.3.00 LACS IN VIEW OF THE CBDT INSTRUCTION NO.3 OF 201 1 DATED 9.2.2011. THE TRIBUNAL FOLLOWING THE JUDGMENT OF TH E HON'BLE HIGH MA NO.251/M/12 ARISING OUT OF ITA NO. 5654/M/08 A.Y:06-07 2 COURT OF BOMBAY IN THE CASE OF PITHWA ENGINEERING WOR KS (276 ITR 519) HAD HELD THAT INSTRUCTION OF CBDT PRESCRIBING THE LIMIT WOULD ALSO APPLY TO PENDING APPEALS EVEN THOUGH ON THE DATE OF FILING OF APPEAL THE MONETARY LIMIT MAY HAVE BEEN LOWER. THE REVENUE IN THE MISCELLANEOUS APPLICATION HAS SUBMITTED THAT IN VIEW OF T HE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF SURYA HERBAL LT D., THE CIRCULAR HAD PROSPECTIVE APPLICATION AND, THEREFORE DISMISSING TH E APPEAL OF THE REVENUE WAS AN APPARENT MISTAKE. 3. WE HAVE HEARD BOTH THE PARTIES, PERUSED AND CONSIDER ED THE MATTER CAREFULLY. WE FIND THAT THE HON'BLE SUPREME CO URT IN THE CASE OF SURYA HERBAL LTD., HAVE HELD THAT INSTRUCTION DATED 9/2/2011 SHOULD NOT BE APPLIED IPSO-FACTO PARTICULARLY WHEN THE MATTER HAD A CASCADING EFFECT. THE REVENUE IN THIS CASE HAS NOT POINTED OUT A NY CASCADING EFFECT. WE ALSO FIND THAT THE JUDGMENT IN CASE OF SURYA HERBAL LTD. HAS BEEN CONSIDERED IN THE CASE OF M/S. MIDAS TOUCH IN MA NO.41/MUM/2012 AND THE TRIBUNAL HELD THAT THERE BEI NG NO CASCADING EFFECT, CIRCULAR DATED 9/2/2011 WOULD APPLY TO THE PE NDING APPEALS. WE, THEREFORE, SEE NO APPARENT MISTAKE IN THE ORDER O F THE TRIBUNAL AND THE MISCELLANEOUS APPLICATION OF THE REVENUE IS REJE CTED. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE R EVENUE STANDS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.8.2012. SD/- SD/- (DINESH KUMAR AGARWAL) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 31.08.2012. JV. MA NO.251/M/12 ARISING OUT OF ITA NO. 5654/M/08 A.Y:06-07 3 COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.