ITO, Nahan V. M/s Lamba Celebration Resort, Paonta Sahib

MA 45/CHANDI/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5524 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 30-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MANJIT SINGH
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER MA NO.45/CHD/2016 (IN ITA NO. 338/CHD/2012) ( ASSESSMENT YEAR 2007-08) THE I.T.O., VS M/S LAMBA CELEBRATION RESORT , NAHAN. BATA BRIDGE, PAONTA SAHIB. PAN : AACFL8622R (APPLIICANT) (RESPONDENT) APPLICANT BY : SHRI MANJIT SINGH, DR RESPONDENT BY : SHRI VINEET KRISHAN DATE OF HEARING : 28.04.2017 DATE OF PRONOUNCEMENT : 19.05.2017 O R D E R PER SANJAY GARG, JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN MOVED BY THE DEPARTMENT FOR RECALLING OF ORDER DATE D 20.1.2016 PASSED IN ITA NO.338/CHD/2012 RELATING TO ASSESSMENT YEAR 2007-08. IT HAS BEEN PLEADED BY TH E DEPARTMENT THAT THE ABOVE STATED ITA NO.338/CHD/201 2 OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL ON THE GR OUND THAT TAX EFFECT IN THE APPEAL WAS LESS THAN RS.10 L ACS AND AS PER CBDT CIRCULAR NO.21/2015 DATED 10.12.2015, T HE APPEALS WHEREIN THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMIT OF RS.10 LACS SHOULD NOT BE FILED BY THE DEPARTMENT. THE SAID INSTRUCTIONS OF THE CBDT HAVE BEEN MADE APPLICABLE TO THE PENDING APPEALS ALSO. NOW T HE REVENUE HAS COME UP WITH THE PRESENT MISCELLANEOUS 2 APPLICATION PLEADING THAT THE TAX INCLUDES SURCHARG E AND EDUCATION CESS. THE FOLLOWING CALCULATION OF THE T AX EFFECT HAS BEEN GIVEN BY THE REVENUE : I) THAT AS PER TAX RATES FOR THE A.Y. 2007-08, THE CALCULATION OF TAX ON THE ADDITION OF RS.30,78,093/ - IS AS UNDER: TAX ON RS.30,78,093/- @ 30% = 9,23,428/- ADD : SURCHARGE @ 10% = 92,343/- TOTAL TAX & SURCHARGE = 10,15,771/- ADD: EDUCATION CESS @ 2% = 20,315/- TOTAL TAX, SURCHARGE & E.CESS = 10,36,086/- 2. IT HAS, THEREFORE, BEEN PLEADED THAT THE TOTAL TAX PAYABLE BY THE ASSESSEE INCLUDING SURCHARGE AND EDUCATION CESS WAS MORE THAN RS.10 LACS. HENCE CIR CULAR NO.21/2015 DATED 10.12.2015 OF THE CBDT WAS NOT APPLICABLE TO THIS APPEAL. 3. WE HAVE HEARD RIVAL CONTENTIONS. THE ISSUE WHETHER THE TAX INCLUDES SURCHARGE AND EDUCATION CE SS ALSO HAS ALREADY BEEN SETTLED BY VARIOUS DECISIONS OF THE TRIBUNAL AND IT HAS TIME AND AGAIN BEEN HELD THAT T HE DEFINITION OF TAX AS PROVIDED U/S 2(43) OF THE INCO ME TAX ACT DOES NOT INCLUDE SURCHARGE AND EDUCATION CESS F OR THE PURPOSE OF EXAMINING THE TAX EFFECT AS ENVISAGED IN CBDT CIRCULAR NO.21/2015 DATED 10.12.2015. RELIANCE IN THIS EFFECT, CAN BE PLACED ON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. M/S DALLAS FIN ANCE LTD. IN ITA NO.3946/DEL/2010 DATED 7.4.2017 AND THE DECISION OF THE BOMBAY BENCH OF THE TRIBUNAL IN THE CASE 3 OF DCIT VS. M/S DOME BELL ELECTRONICS INDIA LTD. IN ITA NO.2480/MUM/2012 VIDE ORDER DATED 22..7.2016. IN V IEW OF THIS, THERE IS NO MERIT IN THE PRESENT MISCELLAN EOUS APPLICATION OF THE REVENUE AND THE SAME IS ACCORDIN GLY DISMISSED. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FI LED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.5.2017 SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 19 TH MAY, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH