DCIT-8(3)(2), MUMBAI V. ZOOMIN ONLINE INDIA PVT. LTD., MUMBAI

MA 48/MUM/2021

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1977 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-03-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 18-01-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

MA No 48/Mum/2021 In ITA No.50/Mum/2019 Assessment year: 2012-13 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'G' BENCH, MUMBAI [Coram: Pramod Kumar (Vice President), and Vikas Awasthy (Judicial Member)] MA No 48/Mum/2021 In ITA No.50/Mum/2019 Assessment year: 2012-13 Deputy Commissioner of Income Tax 8(3)(1) Mumbai ........................Appellant Vs. M/s. Zoomin Online India Pvt. Ltd., ...................... Respondent Jetha Compound, Opp. Nirmal Park, Dr. B Ambedkar Road, Byculla (E), Mumbai 400027 [PAN: AACCD4694B] Appearances by Milind Chavan for the applicant Nitesh Joshi for the respondent Date of concluding the hearing : December 17 th , 2021 Date of pronouncement the order : March 03 rd ,2022 ORDER Per Pramod Kumar, VP: 1. By way of this application, the applicant Assessing Officer points out the following mistake in our order dated 19 th December 2020:- 1. The Hon'ble Income Tax Appellate Tribunal, Mumbai Bench "G", Mumbai passed an order dated 19.02.2020 in ITA No. 50/Mum/2019 for A.Y. 2012-13, in response to the appeal filed by the revenue against order of the Ld.CIT(A), Mumbai. The Hon'ble ITAT "G" Bench has pronounced the decision on 19.02.2020. The same is received in the office of Pr. CIT-8, Mumbai on 09.09.2020. 2. Before the Hon'ble ITAT "G" bench it came to forth that the tax effect on the issue in the present appeal is below Rs. 50 Lacs and in view of the CBDT Circular No 17/2019 dated 08.08.2019 in F.No. 279 / Misc142/2007-ITJ(Pt.) the appeal of the revenue are not maintainable on account of low tax effect hence were dismissed. MA No 48/Mum/2021 In ITA No.50/Mum/2019 Assessment year: 2012-13 Page 2 of 3 A. It is prayed to recall the order ITA No. 50/Mum/2-19 dated 19.02.2020 for AY. 2012-13 for the following reasons- i. The Hon 'ble ITAT vide combined order dated 19.02.2020 in ITA No. 50,51 & 52/ Mum/2019 for A. Y. 2012-13, 2013-14 & 2014-15 had dismissed the said appeals as the tax effect involved is less than Rs.50 lakhs and therefore the appeals were not maintainable on account of low tax effect of the CBDT Circular No. 17/2019 dated 08.08.2019. ii. As per the records the tax effect involved in the ITA No. 50/Mum/2019 for A.Y. 2012- 13 is Rs. 51,34,120/- which was inadvertently mentioned as Rs. 48.89 lakhs in form 36 filing appeal. 2. Heard the parties; perused the records. 3. Learned Departmental Representative takes up through the petition and justifies the same on the ground that surcharge applicable in assessee’s case was by mistake, missed out. Learned counsel opposed the rectification petition mainly on the ground that surcharge of Rs. 2,37,361/- taken into account in tax effect calculations in the rectification petition needs to be ignored as it comes into play only when income exceeds Rs. 1 crore, and, as such, it cannot have any application in computing “ tax effect” of issues in appeal. Learned counsel submits that the deeming fiction has a limited role to play, and that the computation of tax effect cannot take the surcharge in it’s ambit. We are then taken to the wordings of CBDT circular explaining the manner in which tax effect is to be calculated. 4. We find that the tax effect involved in the appeal is prima facie indeed mere than Rs. 50 lakhs, and that surcharge is clearly applicable in this case as income of the assessee is well mere than Rs. 1 crore. In any event, there was no specific adjudication on this aspect of the matter while summarily dismissing the present appeal. It was thus clearly an error not to have taken a conscious call on this aspect of the matter, and proceeding to disperse of the matter. Summarily on the basis that it is an “admitted” position that tax effect involved is less than Rs. 50 lakhs. We, therefore, deem it fit and proper to recall the impugned order and direct the Registry to post it for hearing de novo. Ordered, accordingly. All contentions will remain open. 4. In view of the above discussions, as also bearing in mind entirety of the case, we reject the rectification application as devoid of legally sustainable merits. 5. In the result, miscellaneous application is allowed. Pronouncement in the open court today on the 03 rd March, 2022. Sd/- Sd/- Vikas Awasthy Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 03 rd March, 2022 MA No 48/Mum/2021 In ITA No.50/Mum/2019 Assessment year: 2012-13 Page 3 of 3 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar/ Sr. PS Income Tax Appellate Tribunal Mumbai benches, Mumbai