The DCITRange-4, Ahmedabad V. E. Com Opportunities Pvt. Ltd., Ahmedabad

MA 310/AHD/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4588 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 09-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C PANDIT
• Assessee Lawyers: PF JAIN
• Keywords: Tax effect

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI T.K. SHARMA, JM AND D.C.AGRAWAL, AM DY. CIT, COM. NO.103, 1 ST FLOOR, NAVJIVAN TRUST BLDG., OFF ASHRAM ROAD, AHMEDABAD. V/S . E-COM OPPORTUNITIES (P) LTD., 8 TH FLOOR, WHITE HOUSE, PANCHWATI, AMBAWADI, AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI M. C. PANDIT, SR. D.R. RESPONDENT BY:- SHRI P. F. JAIN, AR O R D E R PER D.C.AGRAWAL, ACCOUNTANT MEMBER. THIS IS A MISCELLANEOUS APPLICATION FILED BY THE D EPARTMENT IN RESPECT OF TRIBUNALS ORDER IN ITA NO.1051/AHD/2005 FOR ASST. YEAR 2001-02 PRONOUNCED ON 3.4.2009. THE TRIBUNAL HAD DI SMISSED THE APPEAL FILED BY THE REVENUE BY RELYING ON THE DECISION OF HON. DELHI HIGH COURT IN THE CASE OF CIT VS. MANGLAM RICINUS LTD. (2008) 174 TAXMAN 186 (DELHI) AND REFERRING TO HEAD NOTES FROM THE DECISI ON. IN THAT CASE INCOME WAS FINALLY DETERMINED AT A LOSS OF RS.22,42,681/-. AS THE TAX EFFECT WAS NIL, THE TRIBUNAL HELD THAT APPEAL IS NOT MAINTAINA BLE. 2. IN THE MISC. APPLICATION THE DEPARTMENT HAS SUBM ITTED THAT AFTER DISALLOWING BOGUS COMMISSION TO THE EXTENT OF RS.7, 86,831/- TOTAL M.A. NO.310/AHD/2009 ARISING OUT OF ITA NO.1051/AHD/2005 WITH C.O. NO.154/AHD/2005 ASST. YEAR :2001-02 2 ADDITION WAS WORKED OUT AT RS.8,80,309/- ON WHICH N OTIONAL TAX EFFECT WOULD COME TO RS.2,75,233/- WHICH IS MORE THAN THE LIMIT OF RS. 2 LACS PRESCRIBED AS PER BOARDS INSTRUCTION NO.5/2008 DAT ED 15.05.2008 AND ACCORDINGLY THE APPEAL WAS MAINTAINABLE. 3. WE HAVE HEARD THE PARTIES. EVEN THOUGH BOARD CIR CULAR AS REFERRED TO BY LD. DR PRESCRIBES A NOTIONAL TAX EFFECT FOR F ILING APPEAL BEFORE THE TRIBUNAL AND RELYING UPON THE BOARDS CIRCULAR THIS MISC. APPLICATION HAS BEEN FILED, BUT THE TRIBUNAL HAS DECIDED THE ISSUE ON THE BASIS OF DECISION OF HON. DELHI HIGH COURT IN CIT VS. MANGLAM RICINUS LTD. (SUPRA). IT IS SETTLED LAW NOW THAT BOARDS CIRCULARS ARE BINDING ON THE AUTHORITIES OF THE DEPARTMENT BUT THEY ARE NOT BINDING ON THE COUR T. REFERENCE IS MADE TO THE DECISION OF HON. BOMBAY HIGH COURT IN DIT VS . OMAN INTERNATIONAL BANK (2009) 313 ITR 128 (BOM). ONCE R ELIANCE HAS BEEN PLACED BY THE TRIBUNAL ON THE DECISION OF HON. DELH I HIGH COURT AND NOT ON THE BOARDS CIRCULAR THEN NO APPARENT MISTAKE CA N BE READ INTO THE ORDER OF THE TRIBUNAL WHICH COULD BE RECTIFIED UNDE R SECTION 254(2). IN VIEW OF THIS, MISC. APPLICATION FILED BY THE DEPART MENT IS DISMISSED. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E DEPARTMENT IS DISMISSED. SD/- SD/- (T.K. SHARMA) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD, DATED : 23/4/2010 MAHATA/- ORDER PRONOUNCED IN OPEN COURT ON 23/4/2010 3 COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD