INCOME TAX OFFICER 28 (2) (5), NAVI MUMBAI V. RAJENDRA B.PATEL, NAVI MUMBAI

MA 268/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6637 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 25-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Keywords: Business income; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) MA NO. 268/MUM/2017 (ITA NO. 3305/MUM/201 4 ) ASSESSMENT YEAR: 2007 - 08 ITO - 28(2)(5), 3 RD FLOOR, ROOM NO. 308, TOWER NO. 6, VASHI RLY. STATION COMPLEX VASHI, NAVI MUMBAI - 40070 6 . VS. SHRI RAJENDRA B. PATEL, C - 305, ITC PARK, 2 ND FLOOR, TOWER NO. 8, CBD BELAPUR RAILWAY STATION, NAVI MUMBAI - 400614. PAN NO. ADJPP3253 F APPELLANT RESPONDENT REVENUE BY : MR. V. VIDHYADHAR, DR ASSESSEE BY : MS. DEEPA KHARE, AR DATE OF HEARING : 06/04/2018 DATE OF PRONOUNCEMENT : 02/05/2018 ORDER PER N.K. PRADHAN, A.M. BY THIS MISCELLANEOUS APPLICATION (MA) , THE REVENUE SUBMITS THAT THE TRIBUNAL MAY RECALL ITS ORDER DATED 25.08.2016 IN ITA NO. 3305/MUM/2014 FOR THE ASSESSMENT YEAR (AY) 2007 - 08. 2. BEFORE US, THE LD. DR SUBMITS THAT IN THE PRESENT CASE, THE ASSESSMENT WA S COMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) BY THE ASSESSING OFFICER (AO) ON 30.12.2009 AT RS.22,55,340/ - AS AGAINST RETURNED INCOME OF RS. ( - ) 29,55,473/ - , BY MAKING AN ADDITION OF RS.52,10,810/ - WHICH INCLUDED ADDITION OF RS.36,74,000/ - ON ACCOUNT OF SHRI RAJENDRA B. PATEL MA NO. 268/MUM/2017 2 LOSS NOT ALLOWED TO BE SET OFF AND CARRIED FORWARD. IT IS SUBMITTED THAT IN APPEAL FILED BY THE ASSESSEE, THE LD. CIT(A) VIDE ORDER DATED 12.03.2014 DELETED THE ADDITION OF RS.36,74,000/ - ON ACCOUNT OF LOSS NOT ALLOWED TO BE SET OFF AGAINST OTHER BUSINESS INCOME. BEING AGGRIEVED, THE REVENUE FILED AN APPEAL BEFORE THE ITAT. THE TRIBUNAL DISMISS ED THE APPEAL ON THE GROUND THAT THE TAX EFFECT PERTAINING TO THE AMOUNT DISPUTED BY THE REVENUE IS LESS THAN THE MONETARY LIMIT OF RS.10,00,000/ - FIX ED BY CBDT IN CIRCULAR NO. 21, 2015 DATED 10.12.2015. THE LD. DR SUBMITS THAT ON PERUSAL OF THE DETAILS, THE TAX EFFECT INVOLVED IS RS.12,36,668/ - WHICH IS ABOVE THE PRESCRIBED MONETARY LIMIT OF RS.10,00,000/ - MENTIONED IN THE ABOVE CIRCULAR ISSUED BY CBDT . 3. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE TAX EFFECT IN THE INSTANT CASE BEING LESS THAN THE MONETARY LIMIT OF RS.10,00,000/ - FIXED IN THE ABOVE CIRCULAR OF THE CBDT, THERE IS NO MISTAKE APPARENT FROM RECORD AND THEREFORE, THE MA BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN THE INSTANT CAS E, THE ASSESSEE HAD FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 31.10.2007 DECLARING TOTAL INCOME AT ( - ) RS.29,55,473/ - . THE AO MADE AN ADDITION OF RS.52,10,810/ - WHICH INCLUDED DISALLOWANCE OF RS.36,74,000/ - ON ACCOUNT OF LOSS NOT ALLOW ED TO BE SET OFF AND CARRIED FORWARD. THUS THE NOTIONAL TAX ON DISPUTED ADDITIONS/DISALLOWANCES MADE BY THE AO EXCEEDS THE MONETARY LIMIT OF RS.10,00,000/ - FIXED IN THE ABOVE CIRCULAR OF THE CBDT. IN THE SAID CIRCULAR, IT HAS BEEN CATEGORICALLY STATED THAT IN SHRI RAJENDRA B. PATEL MA NO. 268/MUM/2017 3 CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. AS THIS IS A MISTAKE APPARENT FROM RECORD, WE RECALL OU R APPEAL ORDER DATED 25.08.2016. THE CASE SHALL BE FIXED FOR HEARING BY A R EGULAR BENCH. 5. IN THE RESULT, THE MA IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/05/2018. SD/ - SD/ - ( SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 02/05/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI