ADDL CIT (TDS)-2, V. MAHARASHTRA JEEVAN, PRADHIKARAN,

MA 40/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8811 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2006-2007
• Appeal Filed On: 25-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BABAN PATIL
• Assessee Lawyers: JIGNESH SAVLA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, I, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO: 40/MUM/2012 ARISING OUT OF :4660/MUM/2010 ASSESSMENT YEAR :2006-07 INCOME TAX OFFICER(TDS)-2(3) ROOM NO.708, 7 TH FLOOR SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG. CHARNI ROAD MUMBAI-400 002. MAHARASHTRA JEEVAN PRADHIKARAN, 3 RD FLOOR CIDCO SOUTH WING, BELAPUR (CBD) NAVI MUMBAI-400 614. PAN NO.: AAAJM 0482 A (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI BABAN PATIL RESPONDENT BY : SHRI JIGNESH SAVLA DATE OF HEARING : 6.7.2012 DATE OF PRONOUNCEMENT : 11.7.2012 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE REQUESTING FOR RECALL OF THE ORDER DATED 30.8.2011 OF THE TRIBUNAL IN ITA NO.4660/MUM/2010. IN THE SAID ORDER, THE TRIBUN AL HAD DISMISSED THE APPEAL OF THE ASSESSEE AS UNADMITTED ON THE GROUND O F LOW TAX EFFECT LESS IS THAN RS.3.00 LACS IN VIEW OF THE INSTRUCTI ON NO.3/2011 DATED 9.2.2011. THE REVENUE HAS FILED THE MISCELLANEOU S APPLICATION STATING THAT IN TERMS OF PARA-11 OF THE SAID INSTRUCTIO N, THE SAME WAS NOT APPLICABLE TO THE APPEALS FILED BEFORE 9.5.2011 MA NO.40/M/12 ARISING OUT OF ITA NO. 4660/M/10 A.Y:06-07 2 2. WE HAVE HEARD BOTH PARTIES IN THE MATTER. THE LD. DR PLACED RELIANCE ON THE JUDGMENT DATED 4.2.2011 IN ITA NO.20 9/2003 OF THE HON'BLE HIGH COURT OF PUNJAB & HARYANA IN WHICH IT HAS B EEN HELD THAT MONETARY LIMIT FIXED BY CIRCULAR DATED 15.5.2008 WIL L NOT BE APPLICABLE TO THE APPEALS FILED PRIOR TO THE DATE OF CIRCULAR. TH E LD. DR ALSO REFERRED TO THE JUDGMENT DATED 29.8.2011 OF THE HON' BLE SUPREME COURT IN THE CASE OF CIT CENTRAL III VS. SURYA HERBAL LTD. IN WHICH IT WAS HELD THAT CIRCULAR DATED 9.2.2011 SHOULD NOT BE A PPLIED IPSO FACTO PARTICULARLY WHEN THE MATTER HAS CASCADING EFFECT. THE LD. AR FOR THE ASSESSEE ON THE OTHER HAND SUBMITTED THAT THE SAID JUDGME NT OF HON'BLE SUPREME COURT HAD BEEN CONSIDERED BY THE HON'BL E JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SMT. VAR SHA DILIP KOLHE IN THE JUDGMENT DATED 5.3.2012 AND NOTED THAT THE A SSESSEE HAD NOT SHOWN THAT THE APPEAL HAD ANY CASCADING EFFECT. THE HON BLE HIGH COURT HELD THAT THE CIRCULAR WILL APPLY TO THE PENDI NG APPEALS ALSO. THE LD. AR ALSO POINTED OUT THAT THE SAID JUDGMENT OF HON' BLE JURISDICTIONAL HIGH COURT HAS BEEN RECENTLY FOLLOWED BY THE MUMBAI B ENCH OF THE TRIBUNAL IN MA NO.41/MUM/2012 DATED 15.6.2012 IN THE CASE OF M/S. MIDAS TOUCH EXPORTS. THE TRIBUNAL NOTED THAT THE REVEN UE HAD NOT PLACED ANY MATERIAL TO SHOW THAT THE APPEAL HAD ANY CA SCADING EFFECT AND ACCORDINGLY HELD THAT THE CIRCULAR DATED 9.2.2011 A PPLIED TO PENDING APPEALS ALSO. MA NO.40/M/12 ARISING OUT OF ITA NO. 4660/M/10 A.Y:06-07 3 3. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THE TRIBUNAL IN THE ORDER DATED 30.8.2011 HAD DISMISSED THE APPEAL OF THE REVENUE IN ITA NO.4660/M/2010 AS THE T AX EFFECT WAS LESS THAN RS.3.00 LACS FOLLOWING INSTRUCTION NO.3 DATED 9 .2.2011 OF CBDT AS PER WHICH REVENUE AUTHORITIES WERE NOT PERMIT TED TO PURSUE APPEAL BEFORE THE TRIBUNAL WHEN THE TAX EFFECT WAS LE SS THAN RS.3.00 LACS. THE LD. DR HAS ARGUED THAT THE SAID CIRCULAR WOUL D NOT APPLY TO APPEALS FILED PRIOR 9.2.2011 AND HAS PLACED RELIANCE ON THE JUDGMENT DATED 29.8.2011 OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT CENTRAL III VS. SURYA HERBAL LTD. IN THE SAID JUDGMEN T THE HON'BLE SUPREME COURT HELD THAT CIRCULAR DATED 9.2.2011 COUL D NOT BE APPLIED TO THE PENDING APPEALS WHEN IT HAD CASCADING EFFECT. THE SAID JUDGMENT OF THE HONBLE APEX COURT HAD BEEN CONSIDERED BY HON'BLE HIGH COURT OF BOMBAY IN ORDER DATED 5.3.2012 IN CASE O F CIT VS. SMT. VARSHA DILIP KOLHE AND THE HONBLE HIGH COURT HELD TH AT CIRCULAR DATED 9.2.2011 WOULD APPLY TO ALL PENDING APPEALS AS IT HA D NOT BEEN SHOWN THAT IT HAD CASCADING EFFECT. THE JUDGMENT OF HONBLE C OURT WAS FOLLOWED BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. MIDAS TOUCH EXPORTS IN MA NO.41/M/2012. IN THAT CASE ALS O THE LD. DR HAD NOT BROUGHT ON ANY MATERIAL TO SHOW THAT APPEAL HAD ANY CASCADING EFFECT AND ACCORDINGLY CONFIRMED THE DISMISSING OF APPEAL ON LOW TAX EFFECT. IN THE PRESENT CASE ALSO, NO MATERIAL HAS BEEN PLACED MA NO.40/M/12 ARISING OUT OF ITA NO. 4660/M/10 A.Y:06-07 4 ON RECORD BY THE LD. DR TO SHOW THAT THE APPEAL HAD CA SCADING EFFECT. THEREFORE, FOLLOWING THE JUDGMENT OF HONBLE HIGH CO URT OF BOMBAY IN THE CASE OF SMT. VARSHA DILIP KOLHE, (SUPRA), WE SEE NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DISMISSING THE A PPEAL OF THE REVENUE FOLLOWING INSTRUCTION NO.3 DATED 9.2.2011 OF CBDT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ACCORDI NGLY REJECTED. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION STANDS REJ ECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.7.2012. SD/- SD/- (D.K. AGARWAL) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTA NT MEMBER MUMBAI, DATED: 11.7.2012. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.