I.T.O. WARD -1(4), Nagpur V. SHRI AMBADAS BAPURO ZALKE, Nagpur

MA 26/NAG/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5254 (ITAT-NAGPUR)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Assessee Lawyers: R P C HANDEKAR
• Keywords: Tax effect
• Section: 143(3); 12

Judgement Text

1 M.A. NO. 26/NAG/2016. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) M.A. NO. 26/NAG/2016 (ARISING OUT OF ITA NO. 218/NAG/2015) ASSESSMENT YEAR: 2008 - 09. THE INCOME - TAX OFFICER, SHRI AMBADAS BAPURAO ZALKE, WARD - 1(4), NAGPUR. VS. NAGPUR. APPLICANT. RESPON DENT. APPLICANT BY : SHRI A.R. NINAWE. RESPONDENT BY : SHRI R.P. CHANDEKAR. DATE OF HEARING : 13 - 01 - 2017 DATE OF PRONOUNCEMENT : 13 TH JANUARY, 2017. O R D E R. BY WAY OF THIS MISCELLANEOUS APPLICATION THE REVENUE SEEKS RECALL OF THE ORDER OF THIS TRIBUNAL IN ITA NO. 218/NAG/2015 FOR ASSESSMENT YEAR 2008 - 09 VIDE ORDER DATED 18 TH AUGUST, 2016. 2. THE SAID APPEAL OF THE REVENUE WAS DISMISSED ON ACCOUNT OF TAX EFFECT ON THE PREMISE THAT THE TAX EFFECT WAS BELOW RS.10 LAKHS. 3. NOW T HE REVENUE HAS SUBMITTED THAT THE TAX EFFECT IS MORE THAN RS.10 LAKHS. FOR THIS, THE REVENUES SUBMISSION IS AS UNDER : 2 M.A. NO. 26/NAG/2016. A SSESSED INCOME RS. 33 , 95,000/ - AS PE R ORIG I NA L ASS T T . U/ S . 1 43 ( 3 ) DATED 24/ 1 2/20 1 2 ( S U R C HARGE I S APPLICABLE ON ENTIRE INCOME AS I T IS EXCEEDING RS . 1 0 L ACS ) . SLAB OF INCOME TAX ON RATE TAX S.C . EDU. INCOME 10 % CESS UPTO RS . 1 , 10 , 000 - - -- -- -- - - 1 , 10 , 000 - 1 , 50 , 000 40 , 000 10 % 4 , 000 1 0 % 3 % 1 , 50 , 000 - 2 , 50 , 000 1 , 00 , 000 20 % 20 , 000 10 % 3 % 2 , 50 , 000 - 10 , 00 , 000 7 , 50 , 000 30 % 2 , 25 , 000 1 0 % 3 % ON BALANCE RS . 23 , 95 , 000 30 % 7 , 18 , 000 1 0 % 3 % 23 , 95 , 000 [RS.33 , 95 , OOO - RS . 10 , 00 , 000] TAX PAYABLE 9 , 67 , 500 ADD: SURCHARGE @ 10% 96 , 750 TAX PAYABLE 10 , 64 , 250 ADD: EDU . CESS @ 3% 31 , 927 TOTAL TAX PAYABLE ON ASSESSED INCOME 10 , 96 , 177 TAX PAYABLE ON REVISED INCOME (AFTER APPEAL EFFECT TO CIT(A) , S ORDER) : REVISED INCOME RS. 3,52,123/ - ( SURCHARGE NOT APPLICABLE AS I NCOME I S LESS THAN RS . 10 LACS . ) SLAB OF INCOME TAX ON RATE TAX S.C. EDU . INCOME CESS UPTO RS . 1 , 10 , 000 -- - - - - - - -- 1 , 10 , 000 - 1 , 50 , 000 40 , 000 10% 4 , 000 NIL 3% 1 , 50 , 000 - 2 , 50 , 000 1 , 00 , 000 20% 20 , 000 NIL 3% ON BALANCE RS . 1 , 02 , 123 1 , 02 , 123 30% 30 , 636 NIL 3 % [RS . 3 , 52 , 123 - RS . 2 , 50 , 000 ] TAX PAYABLE 54.636 ADD EDU. CESS @ 3% 1,639 --------------- TOTAL TAX PAYABLE 56,272 = ========= TAX EFFECT : - TAX ON ORIGINAL ASSTT. U/S 143(3) - RS. 10,96,177/ - LESS : TAX PAYABLE AFTER CIT(A)S DECISION - RS. 56,275/ - ON REVISED INCOME ______________ TAX EFFECT : RS. 10,39,902/ - 3 M.A. NO. 26/NAG/2016. 5. SINCE, TAX EFFECT IS ABOVE RS. 10 LACS, THE CASE NEED TO BE CONSIDERED ON MERITS OF THE GROUND OF APPEAL. 6. HOWEVER, THE FACT IS THAT THE ASSESSEES INCOME AS PER ORDER U/S 143(3) WAS ABOVE RS. 10 LACS AND THEREF ORE, THERE IS SURCHARGE INCLUDED RS.96,750/ - WHEREAS AFTER APPEAL EFFECT U/S 250 ASSESSEES INCOME REDUCED TO RS.3,52,123/ - WHICH IS LESS THAN RS. 10 LACS. HENCE, SURCHARGE NOT LEVIABLE ON REVISED INCOME. 7. THE AO HAS TO CALCULATE T A X PAYABLE WITHIN SLAB RATE PRESCRIBED AND, THEREFORE, SURCHARGE NEED TO BE CONSIDERED FOR CALCULATING LIABILITY OF TAX BY THE ASSESSEE. A.O. HAS NO OPTION TO IGNORE IT. 8. IF SURCHARGE IS EXCLUDED TAX PAYABLE AS PER ORDER U/S 143(3) WOULD BE RS.9,67,500/ - BUT AS FAR AS THE TA X EFFECT IS CONCERNED, IT IS NOT PERMISSIBLE TO IGNORE SURCHARGE IN COMPUTING TAX LIABILITY. HENCE, CASE MAY BE DECIDED ON MERIT CONSIDERING THAT TAX EFFECT IS EXCEEDING RS. 10 LACS. 4. FROM THE ABOVE IT IS CLEAR THAT THE TAX EFFECT EXCEEDS RS.10 LAKHS. ACCORDINGLY THE AFORESAID ORDER OF THE TRIBUNAL IS RECALLED. REGISTRY IS DIRECTED TO FIX THE CASE ON 23 - 01 - 2017. THE DATE HAS ALREADY BEEN COMMUNICATED TO THE PARTIES A N D ORDER PRONOUNCED IN THE OPEN COURT. 5. IN T HE RESULT THE MISCELLANEOUS APPLICATION IS ALLOWED. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 13 TH JANUARY, 2017. 4 M.A. NO. 26/NAG/2016. COPY FORWARDED TO : 1. SHRI AMBADAS BAPURAO ZALKE, WARD NO. 15, PRABHAG NO. 9, SHIVANGAON, POST AIRPORT, NAGPUR - 440 005. 2. I.T.O., WARD 1(4), NAGPUR. 3. . C.I.T. - I, NAGPUR. 4. CIT(APPEALS), - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.