DCIT, V. ABHAY G PAGDHARE,

MA 561/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8823 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 02-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C P C MAURYA
• Keywords: Tax effect

Judgement Text

` , IN THE INCOME TAX APPELLATE TRIBUNAL A' BENCH, M UMBAI . , '#$ . &' , () *+ ( $ BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ,, ,, ,, ,, (* (* (* (* /MA NO. 561/MUM/2011 (ARISING OUT OF ITA NO. 34/MUM/2010) ( - - - - . . . . / ASSESSMENT YEAR : 2005-06) ACIT, PALGHAR CIRCLE DR. ABHAY G. PAGDHARE PALGHAR PROP. OF PHILIA HOSPITAL & / VS. M/S. AGASTYA DEVELOPERS PALGHAR, DIST THANE +/ () ./ PAN - AFJPP 7458 R /0 / APPLICANT 12/0 / RESPONDENT /0 3 ( / APPLICANT BY : SHRI C.P.C. MAURYA 12/0 4 3 ( / RESPONDENT BY : NONE 4 5) / DATE OF HEARING : 22.06.2012 6. 4 5) / DATE OF PRONOUNCEMENT : 22.06.2012 *(7 / O R D E R PER D. MANMOHAN, V.P. BY THIS APPLICATION THE REVENUE CONTENDS THAT THE O RDER PASSED BY THE ITAT A BENCH MUMBAI DATED 21 ST JUNE 2011 CONTAINS A MISTAKE APPARENT FROM RECORD IN AS MUCH AS THE BENCH WAS OF THE OPIN ION THAT THE INSTRUCTIONS ISSUED BY THE CBDT SPECIFYING THE MONE TARY LIMIT FOR FILING APPEAL BEFORE THE ITAT ARE APPLICABLE TO THE PENDIN G CASES ALSO WHEREAS THE APEX COURT CLARIFIED THAT THE CIRCULAR ISSUED BY TH E CBDT IS APPLICABLE PROSPECTIVELY. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAVE HE ARD THE LEARNED D.R. AND CAREFULLY PERUSED THE RECORD. ASSESSEE WAS CARRYING ON MEDICAL PROFESSION APART FROM CARRYING ON BUILDING CONSTRUC TION ACTIVITY. FOR THE YEAR UNDER CONSIDERATION ASSESSEE DECLARED NIL PROF ESSIONAL INCOME DESPITE MA NO. 561/MUM/2011 DR. ABHAY G. PAGDHARE 2 THE FACT THAT THE ASSESSEE HAD SUBSTANTIAL PROFESSI ONAL RECEIPTS. SINCE THE NECESSARY DETAILS WERE NOT FURNISHED, THE AO ESTIMA TED THE PROFESSIONAL RECEIPTS AT ` 60,00,000/- AND 20% OF THE TOTAL RECEIPTS WERE TAKE N AS NET INCOME OF THE ASSESSEE. ON AN APPEAL FILED BY THE A SSESSEE THE LEARNED CIT(A) OBSERVED THAT THERE IS NO BASIS FOR ESTIMATI NG THE INCOME AT 20% OF THE PROFESSIONAL RECEIPTS. THE LEARNED CIT(A) HAS G IVEN COGENT REASONS WHILE COMING TO THE CONCLUSION THAT ESTIMATION OF GROSS P ROFIT AT 10% WOULD MEET THE ENDS OF JUSTICE. SINCE NO MATERIAL WAS FURNISHE D BEFORE US TO CONTRADICT THE FINDINGS OF THE LEARNED CIT(A), THE BENCH UPHEL D THE ORDER OF THE LEARNED CIT(A). AS AN ADDITIONAL FACTOR THE BENCH HAD ALSO TAKEN NOTE OF THE FACT THAT THE TAX EFFECT IS LESS THAN ` 3,00,000/-. THUS IT COULD BE SEEN THAT THE ORDER PASSED BY THE TRIBUNAL ON MERITS WAS NOT CHALLENGED BEFORE US BY WAY OF MISCELLANEOUS APPLICATION. AT ANY RATE THE INSTRUCT ION ISSUED BY THE CBDT WAS FOLLOWED BY THE HON'BLE BOMBAY HIGH COURT, AT T HE RELEVANT POINT OF TIME, WHEREIN IT WAS HELD THAT THE ISSUE OF TAX EFF ECT SHOULD BE CONSIDERED WITH REFERENCE TO THE DATE ON WHICH THE APPEAL WAS TAKEN UP FOR HEARING. IT CANNOT, THUS, BE SAID THAT THERE IS A MISTAKE APPAR ENT FROM RECORD IN THE ORDER PASSED BY THE ITAT. AT ANY RATE THE ISSUE ON MERITS WAS NOT CHALLENGED BY THE APPELLANT BEFORE US. HAVING REGARD TO THE CI RCUMSTANCES OF THE CASE WE REJECT THE MISCELLANEOUS APPLICATION FILED BY TH E REVENUE. 8 59 :+ 4 ,, (* )8: 4 :5 ; ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JUNE 2012. *(7 4 . ) ( < =*9 22.06.2012 4 > SD/- SD/- (B. RAMAKOTAIAH) (D. MANMOHAN) () *+ / ACCOUNTANT MEMBER '#$ / VICE PRESIDENT MUMBAI ; =* DATED : 22 ND JUNE 2012 . - . ./ N.P., SR. PS MA NO. 561/MUM/2011 DR. ABHAY G. PAGDHARE 3 *(7 *(7 *(7 *(7 4 44 4 1-5@, 1-5@, 1-5@, 1-5@, A(,.5 A(,.5 A(,.5 A(,.5 / COPY OF THE ORDER FORWARDED TO : 1. /0 / THE APPELLANT 2. 12/0 / THE RESPONDENT. 3. B ( ) / THE CIT(A)- II, THANE, 4. B / CIT - III, THANE, 5. ,C> 1-5- , , / DR A BENCH , ITAT, MUMBAI 6. > D / GUARD FILE. * DICTATION PAD ATTACHED *(7 *(7 *(7 *(7 / BY ORDER, 2,5 1-5 //TRUE COPY// ' '' ' / : : : : (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI