ASST CIT 25(1), V. SHYAM CONSTRUCTIONS CO.,

MA 403/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2697 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 30-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAWAN KUMAR BARLA
• Keywords: Retrospective amendment; Tax effect
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER M.A. NO. 403/MUM/2014 (ARISING OUT OF ITA NO. 7358/MUM/2010) ASSESSMENT YEAR: 2005-06 ACIT - 25(1) C-11, ROOM NO.L 202, 2 ND FLOOR PRATYAKSHA KAR BHAVAN, BKC BANDRA (E) MUMBAI 400 051 VS. M/S. SYAM CONSTRUCTIONS CO. 1, RAM DARSHAN, DAHISAR (E) MUMBAI 400 068 PAN:AACFS 4312 H (APPELLANT) (RESPON DENT) ASSESSEE BY : SHRI K. GOPAL & MS. NEHA PARANJPE REVENUE BY : SHRI PAWAN KUMAR BARLA DATE OF HEARING : 0 9 . 01 . 201 5 DATE OF ORDER : 16 . 01 .201 5 O R D E R PER AMIT SHUKLA, JM: THE AFORESAID MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE ON THE GROUND THAT, ITAT VIDE ORDER DATED 2 0.05.2014 HAS DISMISSED THE APPEAL OF THE DEPARTMENT ON ACCOUNT O F TAX EFFECT BEING LESS THAN RS. 3 LAKHS AS PER CBDT INSTRUCTION NO. 3 /2011. IT HAS BEEN CONTENDED THAT, THE SAID INSTRUCTION IS APPLICABLE W.E.F. 09.02.2011, WHEREAS THE APPEAL WAS FILED BY THE REVENUE ON 27.1 0.2010 AND HENCE CBDT INSTRUCTION NO. 5 OF 2008 IS APPLICABLE, WHICH PRESCRIBES MONITORY LIMIT OF RS. 2 LAKHS. HERE IN THIS CASE TAX EFFECT IS ABOVE RS. 2 LAKHS. M.A. NO. 403/MUM/2014 (ARISING OUT OF ITA NO. 7358/MUM/2010) M/S. SYAM CONSTRUCTIONS CO ASSESSMENT YEAR: 2005-06 2 2. BEFORE US THE LD. DR SUBMITTED THAT THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. VIRGO MARKETING PVT. LTD. IN SP ECIAL LEAVE APPEAL NO. (CIVIL)-/2012(CC21705)/2011, VIDE ORDER DATED 06.01 .2012, WHILE CONSIDERING THE DELHI HIGH COURT JUDGMENT, HELD THA T THE DEPARTMENT SHOULD MOVE TO THE HIGH COURT FOR REVIEW IN VIEW OF PARA 11 OF CBDT INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011. THIS OR DER OF THE SUPREME COURT CAN BE INFERRED TO MEAN THAT INSTRUCTION NO. 3 OF 2011 IS NOT APPLICABLE TO THE PENDING APPEALS FILED BEFORE, AS PARA 11 ENVISAGES THAT THE INSTRUCTION IS APPLICABLE ON THE APPEALS FILED AFTER 09.02.20111. THUS THE ORDER OF THE TRIBUNAL SHOULD BE RECALLED AND BE HEARD ON MERITS. 3. ON THE OTHER HAND LEARNED COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE HONBLE SUPREME COURT DECISION IN THE CASE OF V IRGO MARKETING DOES NOT HAVE ANY EFFECT ON THE ORDERS AND THE JUDGMENTS OF THE HONBLE BOMBAY HIGH COURT. MOREOVER SUPREME COURT HAS MAINL Y GRANTED A LIBERTY TO THE DEPARTMENT TO FILE REVIEW BEFORE THE DELHI HIGH COURT WHICH IS APPLICABLE QUA THAT CASE. HENCE THE SAME I S NOT APPLICABLE IN BOMBAY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. THE APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL ON THE GROUND THAT, TAX E FFECT OF THE ISSUES RAISED WAS ADMITTEDLY LESS THAN RS. 3 LAKHS AND HEN CE AS PER CBDT INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011, THE APP EAL OF THE REVENUE DOES NOT SURVIVE, BECAUSE THE SAID INSTRUCTION WILL APPLY TO THE PENDING APPEALS ALSO. THIS WAS HELD AFTER RELYING UPON THE TWO DECISIONS OF THE HONBLE BOMBAY HIGH COURT VIZ; (I) CIT VS. MADHUKAR K. INAMDAR (HUF), (2009) 318 ITR 149 (BOM); (II) CIT VS. VARSHA DILIP KOLHE (2013) 350 ITR 248. THE LD. DR HAS STRONGLY RELIED UPON THE ORDER OF T HE SUPREME M.A. NO. 403/MUM/2014 (ARISING OUT OF ITA NO. 7358/MUM/2010) M/S. SYAM CONSTRUCTIONS CO ASSESSMENT YEAR: 2005-06 3 COURT IN THE CASE OF VCIT VS., VIRGO MARKETING PVT. LTD. (SUPRA) TO CONTEND THAT NOW THE HONBLE SUPREME COURT HAS REVE RSED THIS PROPOSITION. THE HONBLE SUPREME COURT IN THE SLP F ILED AGAINST JUDGMENT AND ORDER DATED 21.04.2011 IN ITA NO. 1468 OF 2006, PASSED BY DELHI HIGH COURT HELD AS UNDER: DELAY CONDONED. IN VIEW OF PARA 11 OF CBDT INSTRUCTION NO. 3/2011 D ATED 9 TH FEBRUARY, 2011, LIBERTY IS GRANTED TO THE DEPARTMEN T TO MOVE THE HIGH COURT BY WAY OF REVIEW WITHIN FOUR WEEKS. THE SPECIAL LEAVE PETITION IS, ACCORDINGLY, DISPOSE D OF. IN THE AFORESAID ORDER THE HONBLE SUPREME COURT HA S MERELY GIVEN LIBERTY TO THE DEPARTMENT TO MOVE A REVIEW PETITION BEFORE THE HONBLE DELHI HIGH COURT. IT HAS BEEN INFORMED BY THE LD. D R BEFORE US THAT THE HONBLE DELHI HIGH COURT VIDE ORDER DATED 01.08.201 3 HAS DISMISSED THE REVENUES APPEAL IN THE FOLLOWING MANNER: O R D E R 01.08.2013 THIS APPEAL BY THE REVENUE, WHICH PERTAINS TO ASSES SMENT YEAR 1999-2000, HAS TO BE DISMISSED IN VIEW OF THE FACT THAT SECTION 14A WHICH WAS INSERTED BY THE FINANCE ACT, 2001 WIT H RETROSPECTIVE EFFECT FROM 01.04.1962, SPECIFICALLY STIPULATES IN THE PROVISO THAT THE ASSESSING OFFICER SHALL NOT REASSE SS CASES UNDER SECTION 147. IN THE PRESENT CASE, RETURN OF THE ASSESSMENT YEAR 1999-2000 WAS FILED ON 27.11.2000 AND ONLY INTIMATION UNDER S ECTION 143(1) WAS SENT. SUBSEQUENTLY, RE-ASSESSMENT NOTICE WAS IS SUED. IN VIEW OF THE AFORESAID POSITION, WHICH HAS BEEN C LARIFIED IN CIRCULAR NO. 8 OF 2002, THE APPEAL OF THE REVENUE F OR THIS YEAR IS DISMISSED. IT IS CLARIFIED THAT DISMISSAL OF THIS A PPEAL WILL NOT AFFECT THE OTHER PENDING APPEALS. M.A. NO. 403/MUM/2014 (ARISING OUT OF ITA NO. 7358/MUM/2010) M/S. SYAM CONSTRUCTIONS CO ASSESSMENT YEAR: 2005-06 4 FROM THE ABOVE, IT CANNOT BE HELD THAT RATIO DECEDENDI HAS BEEN LAID DOWN EITHER BY THE SUPREME COURT OR BY THE DELHI HI GH COURT THAT THE CBDT INSTRUCTION NO. 3/2011 IS NOT APPLICABLE FOR T HE PENDING APPEALS. FURTHER THE REVENUE HAS NOT FILED ANY REVIEW PETITI ON AGAINST THE DECISIONS OF THE BOMBAY HIGH COURT, NOR IT HAS BEEN BOUGHT BEFORE US THAT ANY SLP HAS BEEN FILED BEFORE THE HONBLE SUPR EME COURT AGAINST THE SAID DECISIONS. IN SUCH A SITUATION THE DECISIO N OF THE HONBLE JURISDICTIONAL HIGH COURT IS STILL BINDING UPON THE TRIBUNAL, AS THE HONBLE JURISDICTIONAL HIGH COURT HAS CATEGORICALLY REITERA TED THAT, CBDT INSTRUCTIONS LAYING DOWN MONETARY LIMITS FOR FILING OF APPEALS ARE APPLICABLE FOR THE PENDING APPEALS ALSO. THEIR LORD SHIPS HAVE INTERPRETED SIMILAR PARAGRAPH OF CBDT INSTRUCTION NO. 5 OF 2008 DATED 15.05.2008 AND ALSO PARA 11 OF INSTRUCTION NO. 3 OF 2011. THUS , RESPECTFULLY FOLLOWING THE BINDING PRECEDENCE OF JURISDICTIONAL HIGH COURT, WE HOLD THAT CBDT INSTRUCTION NO. 3 OF 2011 DATED 09.02.201 1 WILL BE APPLICABLE ON THE PENDING APPEALS ALSO. ACCORDINGLY MISCELLANE OUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF JANUARY, 2015. SD/- SD/- (SANJAY ARORA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 16.01.2015 *SRIVASTAVA M.A. NO. 403/MUM/2014 (ARISING OUT OF ITA NO. 7358/MUM/2010) M/S. SYAM CONSTRUCTIONS CO ASSESSMENT YEAR: 2005-06 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR E BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.