ASST CIT 25(2), V. MANGESH T. SAWANT,

MA 257/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4100 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 04-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BISTDR
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER M.A. NO.257/MUM/2015 (ARISING OUT OF ITA NO.1053/MUM/2013) ASSESSMENT YEAR. 2009-10 ACIT - 25(2) C-11, PRATYAKSHAKAR BHAVAN R.NO.108, BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI-400 051. / VS. SHRI M ANGESH T. SAWANT A-004, PRATHMESH HORISES NEW M.H.B. COLONY BORIVALI(W) MUMBAI-400 092. ( / APPELLANT) ( / RESPONDENT) P.A. NO. AAGPS 0518 M / DATE OF HEARING : 19/02/2016 !' / DATE OF PRONOUNCEMENT 19/02/2016 /APPELLANT BY : SHRI B.S. BIST-DR /RESPONDENT BY : NONE M.A.NO.257/MUM/2015 (ARISING OUT OF ITA NO.1053/MUM/2013) SHRI MANGESH T. SAWANT 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) : THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE IN COME TAX ACT, 1961 (HEREINAFTER THE ACT) HAS BEEN PREFER RED BY THE REVENUE BY CONTENDING THAT THE TRIBUNAL VIDE ORDER DATED 28/10/2014 DISMISSED THE APPEAL OF THE REVENUE ON T AX EFFECT BELOW PRESCRIBED MONETARY LIMIT AS CONTAINED IN CBD T INSTRUCTION NO. 5 DATED 10/07/2014, WHEREIN, PRESCR IBED TAX EFFECT, AT THE RELEVANT TIME WAS RS.4 LAKH FOR FILI NG THE APPEAL BEFORE THE TRIBUNAL AND ALSO FOLLOWING THE DECISION FROM HONBLE BOMBAY HIGH COURT IN THE CASE OF MADHUKAR I NAMDAR (158 TAXMAN 101) ALONG WITH ANOTHER DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS SURENDR AMAL R. LODHA (ITA NO.1628/MUM/2011) AND ITA NO.1053/MUM/2013) ORDER DATED 25/08/2014). THE LD. DR CONTENDED THAT THE TAX EFFECT IN THE PRESENT APPEAL WAS RS.4,10,870/-, WHICH IS MORE THAN THE PRESCRIBED LI MIT OF RS.4 LAKH. M.A.NO.257/MUM/2015 (ARISING OUT OF ITA NO.1053/MUM/2013) SHRI MANGESH T. SAWANT 3 2. DURING HEARING, NOBODY WAS PRESENT FOR THE ASSESSEE, IN SPITE OF ISSUANCE OF NOTICE. WE HAVE C ONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAI LABLE ON RECORD. WE NOTE THAT THE APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL ON 28/10/2014 ON TAX EFFECT AND THE ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENT OF LD. DR AT THE CONCLUSION OF THE HEARING. THE LD. DR NEVER BRO UGHT TO OUR NOTICE THAT THE TAX EFFECT IS SLIGHTLY ABOVE THE PR ESCRIBED MONETARY LIMIT. NOW THROUGH THIS MISCELLANEOUS APPL ICATION, IT HAS BEEN POINTED OUT THAT THE TAX EFFECT IS SLIGHTL Y ABOVE THE LIMIT. HOWEVER, WITHOUT GOING INTO MUCH DELIBERATIO N, EVEN IF THE CONTENTION OF THE LD. DR IS PRESUMED TO BE CORR ECT STILL IN VIEW OF CBDT INSTRUCTION NO.21 OF 2015, DATED 10/12 /2015 (F NO.279/MISC./142/2007-IT(PT), APPLICABLE WITH RETRO SPECTIVE EFFECT, WHEREIN, THE DEPARTMENT WAS ADVISED/DIRECTE D BY THE BOARD NOT TO FILE APPEAL IN THE CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE FOLLOWING MONETARY LIMIT.:- SL. NO. APPEALS IN INCOME TAX MATTERS MONETARY LIMIT (IN RS.) 1. BEFORE ITAT 10,00,000/ - 2. U/S 260 A BEFORE HONBLE HIGH COURT 20,00,000/ - 3. BEFORE HONBLE SUPREME COURT 25,00,000/ - M.A.NO.257/MUM/2015 (ARISING OUT OF ITA NO.1053/MUM/2013) SHRI MANGESH T. SAWANT 4 AS PER THE AFORESAID INSTRUCTION/REVISED MONETARY L IMIT, WHICH ARE ALSO EFFECTIVE WITH RETROSPECTIVE EFFECT, STILL, THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. EVEN, IF WE WITHDRAW THE AFORESAID ORDER OF THE TRIBUNAL, AND A GAIN APPLY THE LATEST AFOREMENTIONED CBDT INSTRUCTION, STILL T HE RESULT WILL REMAIN THE SAME, THEREFORE, THIS MISCELLANEOUS APPL ICATION OF THE DEPARTMENT IS DISMISSED. FINALLY, THE MISCELLANEOUS APPLICATION OF THE REVEN UE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 19/02/2016. SD/- SD/- (RAJESH KUMAR) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER MUMBAI; %& DATED : 19/02/2016 F{X~{T? P.S/. '. . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ) * ( ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ''01 , ) 01' , / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. / BY ORDER, - ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI