DEPUTY COMMISSIONER OF INCOME TAX-4(3)(1), MUMBAI V. PRADIPKUMAR R. SHAH, MUMBAI

MA 310/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9430 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 08-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA LD
• Assessee Lawyers: DR K SIVARAM; SHASHANK DUNDU LD ARS
• Keywords: Audit objection; Tax effect; Reassessment proceedings

Judgement Text

1 MA NO.310/MUM/2019 PRADIP KUMAR R. SHAH ASSESSMENT YEAR-2007-08 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE HONBLE SHRI SAKTIJIT DEY, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO.310/MUM/2019 [ARISING OUT OF I.T.A. NO.4383/MUM/2017] ( / ASSESSMENT YEAR: 2007-08) DEPUTY COMMISSIONER OF INCOME TAX RANGE-4(3)1 AAYKAR BHAVAN, M.K.ROAD MUMBAI-400 020 . / VS. M/S. PRADIP KUMAR R. SHAH 2 ND FLOOR, SHREEJI BHAVAN MANGALDAS ROAD MUMBAI-400 002. ./ ./PAN/GIR NO. AAKPS-6292-G ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI NISHANT SAMAIYA- LD.DR / RESPONDENT BY : DR. K. SIVARAM & SH.SHASHANK DUNDU- LD. ARS '# $% / DATE OF HEARING : 05/07/2019 &' $% / DATE OF PRONOUNCEMENT : 05/07/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS APPLICATION, THE REVENUE SEEKS RE CALL OF TRIBUNAL ORDER ITA NO. 4383/MUM/2017 WITH RESPECT TO CAPTIONED ASS ESSEE, PASSED IN BUNCH OF REVENUES APPEALS ON 03/08/2018. 2 MA NO.310/MUM/2019 PRADIP KUMAR R. SHAH ASSESSMENT YEAR-2007-08 2. ALTHOUGH THE REVENUE HAS SOUGHT CONDONATION OF D ELAY IN FILING THE SAID APPLICATION, HOWEVER, IT TRANSPIRES THAT THE O RDER UNDER QUESTION WAS RECEIVED BY THE REVENUE ONLY ON 03/01/2019 AND AS C OUNTED FROM THIS DATE, THE APPLICATION HAS BEEN PREFERRED WITHIN A PERIOD OF 6 MONTHS AS PRESCRIBED U/S 254(2). FINDING THE SAME IN ORDER, W E PROCEED TO ADJUDICATE THE SAME. 3. DRAWING OUR ATTENTION TO THE APPLICATION, LD. DE PARTMENTAL REPRESENTATIVE [DR], SUBMITTED THAT THE REVENUES A PPEAL WAS DISMISSED KEEPING IN VIEW LOW-TAX EFFECT CIRCULAR NO. 03/2018 ISSUED BY CBDT ON 11/07/2018 AND A LIBERTY WAS GRANTED TO THE REVENUE TO SEEK RECALL OF THE ORDER IN CASE, THE MATTER WAS FOUND TO BE COVERED B Y ANY OF THE EXCEPTIONS GIVEN IN THE SAID CIRCULAR. 4. IN THE ABOVE BACKGROUND, OUR ATTENTION HAS BEEN DRAWN TO THE FACT THAT REASSESSMENT PROCEEDINGS WERE INITIATED BY ACCEPTIN G THE REVENUE AUDIT OBJECTIONS AND THEREFORE, THE FACTS OF THE CASE WER E COVERED BY EXCEPTION (C) OF CLAUSE 10 OF THE SAID CIRCULAR WHICH READ AS UNDER: - 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT : - . (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS B EEN ACCEPTED BY THE DEPARTMENT, OR . PER CONTRA, LD. SR. COUNSEL SUBMITTED THAT THE ISSU E ON LEGAL GROUNDS STOOD DECIDED AGAINST THE ASSESSEE BY LD. FIRST APPELLATE AUTHORITY AND THE 3 MA NO.310/MUM/2019 PRADIP KUMAR R. SHAH ASSESSMENT YEAR-2007-08 REVENUE WAS UNDER APPEAL ON MERITS OF THE CASE SINC E THE ASSESSEE HAD NOT CHALLENGED THE IMPUGNED ORDER ON LEGAL GROUNDS. 5. UPON CAREFUL CONSIDERATION, THE UNDISPUTED POSIT ION THAT EMERGES IS THE FACT THE REVENUES APPEAL WAS DISMISSED BY TRIB UNAL IN TERMS OF CBDT LOW-TAX EFFECT CIRCULAR NO. 03/2018 DATED 11/07/201 8. ADMITTEDLY, THE REASSESSMENT PROCEEDINGS WERE TRIGGERED BY THE REVE NUE ACCEPTING REVENUE AUDIT OBJECTIONS AND THEREFORE, THE FACT OF THE CASE WERE SQUARELY COVERED BY EXCEPTION (C) OF CLAUSE 10. THE ARGUMENT THAT THE CASE, ON LEGAL GROUNDS, WAS DECIDED AGAINST THE ASSESSEE BY LD. FIRST APPELLATE AUTHORITY WOULD NOT BE RELEVANT SINCE THE ISSUE, ON MERITS, WAS DECIDED IN ASSESSEES FAVOR AND THE REVENUE WAS UNDER APPEAL A GAINST THE SAME. CLAUSE (10) OF THE SAID CIRCULAR CLEARLY PROVIDE TH AT ADVERSE JUDGMENT ARISING OUT OF STATED EXCEPTIONS WERE TO BE CONTEST ED BY REVENUE ON MERITS NOTWITHSTANDING THE QUANTUM OF TAX EFFECT. 6. FINDING MERIT IN THE APPLICATION, THE AFORESAID ORDER OF THE TRIBUNAL TO THE EXTENT OF ITA NO. 4383/MUM/2017 STANDS RECALLED FOR FRESH HEARING. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR FRESH HE ARING IN DUE COURSE BEFORE REGULAR BENCH AFTER GIVING DUE INTIMATION TO BOTH T HE PARTIES. 7. THE APPLICATION STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH JULY, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 4 MA NO.310/MUM/2019 PRADIP KUMAR R. SHAH ASSESSMENT YEAR-2007-08 MUMBAI; DATED : 05.07.2019 SR.PS:- JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT 2. #$!' / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. #( , ( , / DR, ITAT, MUMBAI 6. *+ / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI.