DCIT, Moradabad V. Anil Kumar Rastogi Prop., Moradabad

MA 355/DEL/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6028 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-01-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R P SINGH
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A : NEW DELHI DELHI BENCH A : NEW DELHI DELHI BENCH A : NEW DELHI DELHI BENCH A : NEW DELHI BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT AND SHRI I.P.BANSAL, JUDICIAL MEMBER SHRI I.P.BANSAL, JUDICIAL MEMBER SHRI I.P.BANSAL, JUDICIAL MEMBER SHRI I.P.BANSAL, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO.355/DEL/2010 MISCELLANEOUS APPLICATION NO.355/DEL/2010 MISCELLANEOUS APPLICATION NO.355/DEL/2010 MISCELLANEOUS APPLICATION NO.355/DEL/2010 (IN ITA NO.3334/DEL/2009) (IN ITA NO.3334/DEL/2009) (IN ITA NO.3334/DEL/2009) (IN ITA NO.3334/DEL/2009) ASSESSMENT YEAR : 2005 ASSESSMENT YEAR : 2005 ASSESSMENT YEAR : 2005 ASSESSMENT YEAR : 2005- -- -06 0606 06 DY.COM DY.COM DY.COM DY.COMMISSIONER OF MISSIONER OF MISSIONER OF MISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, RANGE RANGE RANGE RANGE- -- -II, II,II, II, MORADABAD. MORADABAD. MORADABAD. MORADABAD. VS. VS. VS. VS. SHRI ANIL KUMAR RASTOGI, SHRI ANIL KUMAR RASTOGI, SHRI ANIL KUMAR RASTOGI, SHRI ANIL KUMAR RASTOGI, PROP. CUTLERY, PROP. CUTLERY, PROP. CUTLERY, PROP. CUTLERY, MORADABAD. MORADABAD. MORADABAD. MORADABAD. PAN NO.AAAFF4673J. PAN NO.AAAFF4673J. PAN NO.AAAFF4673J. PAN NO.AAAFF4673J. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.P.SINGH, SR.DR. RESPONDENT BY : SHRI PIYUSH KAUSHIK, ADVOCATE. ORDER PER I.P.BANSAL, JM : VIDE MISCELLANEOUS APPLICATION FILED AS ABOVE, THE REVENUE HAS SOUGHT RECALL OF THE ORDER PASSED BY THIS TRIBU NAL DATED 11.11.2009 IN ITA NO.3334/DEL/2009. THE APPEAL FIL ED BY THE REVENUE WAS DISMISSED ON ACCOUNT OF LOW TAX EFFECT WITHOUT GOING TO THE MERITS OF THE ISSUES RAISED BY THE REV ENUE IN THE APPEAL. TAX EFFECT CALCULATION WAS SUBMITTED BY TH E ASSESSEE DURING THE COURSE OF HEARING OF THE APPEAL ACCORDIN G TO WHICH, TAX EFFECT INCLUDING EDUCATION CESS WAS ` 99,705/- O N AN AMOUNT OF INCOME OF ` 3,25,833/-. THE CALCULATION OF TAX E FFECT HAS NOT BEEN DISPUTED BY THE REVENUE. IT IS THE CASE OF TH E REVENUE THAT THE TAX EFFECT IS IN RESPECT OF DEPB WHICH ACCORDIN G TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F LIBERTY INDIA IS NOT ENTITLED FOR DEDUCTION U/S 80-I. THUS, ON ME RITS, IT HAS BEEN MA-355/DEL/2010 2 CLAIMED BY THE REVENUE THAT RECTIFICATION SHOULD BE EFFECTED IN THE AFOREMENTIONED ORDER OF THE TRIBUNAL IRRESPECTI VE OF THE FACT THAT THE TAX EFFECT IN THE PRESENT CASE IS BELOW ` 2 LAKHS. LEARNED DR RELYING ON THE APPLICATION PLEADED THAT THE AFOREMENTIONED ORDER OF THE TRIBUNAL SHOULD BE RECA LLED AND ISSUE RAISED BY THE REVENUE SHOULD BE DECIDED ON ME RITS. ON THE OTHER HAND, IT WAS SUBMITTED BY THE LEARNED AR THAT THE DECISION ON MERITS HAS NEVER BEEN RENDERED BY T HE TRIBUNAL. THE APPEAL OF THE REVENUE WAS DISMISSED ON THE SHOR T GROUND OF LOW TAX EFFECT. THUS, IT WAS PLEADED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AS DEPARTMENT COULD NOT F ILE THE APPEAL AS THE TAX EFFECT WAS BELOW ` 2 LAKHS AND THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL VIDE WHICH THE DEPARTMENT AL APPEAL HAS BEEN DISMISSED ON ACCOUNT OF LOW TAX EFFECT. THERE FORE, HE PLEADED THAT THE MISCELLANEOUS APPLICATION SHOULD B E DISMISSED. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. THE MERIT OF T HE ISSUE WAS NEVER CONSIDERED BY THE TRIBUNAL AND APPEAL OF THE REVENUE WAS DISMISSED ON GROUND OF LOW TAX EFFECT. THE TRIBUNA L HAS BEEN TAKING CONSISTENT VIEW THAT IRRESPECTIVE OF THE MER ITS OF THE ADDITION, THE APPEAL COULD NOT BE FILED BY THE REVE NUE ON ACCOUNT OF LOW TAX EFFECT. THE APPEAL HAVING BEEN DISMISSE D ON ACCOUNT OF LOW TAX EFFECT WITHOUT CONSIDERING THE MERITS, W E SEE NO FORCE IN THE CONTENTION RAISED BY THE REVENUE FOR RECALLI NG OF THE AFOREMENTIONED ORDER. THERE IS NO MISTAKE AS ENVIS AGED IN MA-355/DEL/2010 3 SECTION 254(2) OF THE ACT IN THE ORDER OF THE TRIBU NAL. THEREFORE, WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY T HE REVENUE. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 7 TH JANUARY, 2011. SD/- SD/- (G.E.VEERABHADRAPPA) (G.E.VEERABHADRAPPA) (G.E.VEERABHADRAPPA) (G.E.VEERABHADRAPPA) (I.P.BANSAL) (I.P.BANSAL) (I.P.BANSAL) (I.P.BANSAL) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 07.01.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR MA-355/DEL/2010 4