DCIT CENT.CIR-8(2), MUMBAI V. SHRI FAROOQ ALI KHAN, MUMBAI

MA 60/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6609 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 29-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PKD APPLICANT
• Keywords: Rectification of order; Tax effect

Judgement Text

F IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 60 /MUM/2019 ARISING OUT OF ITA NO. 3921/MUM/2018 ASSESSMENT YEAR 2009 - 10 DEPUTY COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE - 8(2), 6 TH FLOOR, ROOM NO. 658, AAYAKAR BHAWAN, M. K. ROAD, MUMBAI - 400020 V. MR. FAROOQ ALI KHAN NO. 21, BENSON A CROSS ROAD, BENSON TOWN POST, BANGALORE - 560046 PAN ABYPK7991D APPLICANT RESPONDENT REVENUE BY MS. AKHILENDRA P. YADAV,DR ASSESSEE BY NONE DATE OF HEARING : 02 - 08 - 2019 DATE OF PRONOUNCEMENT : 02 - 0 8 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS MISCELLANEOUS A PPLICATION BEARING MA NO. 60 /MUM/2019 ARISING OUT OF ITA NO. 3921 /MUM/201 8 FOR ASSESSMENT YEAR 2009 - 10 , FILED BY REVENUE U/S 254(2) OF THE INCOME - TAX ACT, 1961( HEREINAFTER CALLED THE ACT) BEING AGGRIEVED BY APPELLATE ORDER DATED 10.08.201 8 PASSED BY I NCOME - TAX APPELLATE TRIBUNAL, MUMBAI ( HEREINAFTER CALLED THE TRIBUNAL) U/S 254(1) OF THE 1961 ACT IS SEEKING RECTIFICATION OF MISTAKES APPARENT FROM RECORDS ON THE GROUND THAT THE SAID APPEA L FILED BY REVENUE WAS DISPOSED OF BY TRIBUNAL VIDE ORDER DATED 10.08.2018 AS LOW TAX EFFECT APPEAL ON THE GROUNDS THAT IT IS COVERED BY CBDT CIRCULAR NO.3/2018 DATED 11.07.2018 BUT IN - FACT IT IS NOW PLEADED THAT THE TAX EFFECT IN THIS APPEAL IS MORE THAN RS. 20 LACS AND MA NO. 60/MUM/2019 ARISING OUT OF ITA NO. 3921/MUM/201 8 2 | P A G E THE TRIBUNAL OUGHT NOT TO HAVE BEEN DISMISSED THIS APPEAL AS LOW TAX EFFECT APPEAL FILED BY REVENUE AS THE SAID APPEAL WAS NOT COVERED BY AFORESAID CBDT CIRCULAR DATED 11.07.2018. THE REVENUE MAIN BONE OF CONTENTION AS WE HAVE SEEN IN MA APPLICATION IS THAT ADDITIONS TO THE TUNE OF RS. 63,42,932/ - WERE DELETED BY LEARNED CIT(A) ON WHICH TAX EFFECT INCLUDING SURCHARGE IS MORE THAN RS. 20 LACS. WE HAVE OBSERVED THAT IN AY: 2009 - 10 , APART FROM INCOME TAX AS APPLICABLE BASED ON PROGRESSION SLAB BASIS, THERE WAS ALSO SURCHARGE @10% WHICH WAS PAYABLE IF THE INCOME EX CEEDED RS. 10 LACS IN THE CASE OF INDIVIDUALS . IF THE AFORESAID SURCHARGE IS TAKEN INTO EFFECT, THE TAX EFFECT CERTAINLY SHALL BE MORE THAN RS. 20 LACS IN THE APPEAL FILED BY REVENUE . REFERENCE IS ALSO DRAWN TO DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. K.SRINIVASAN (1972) 83 ITR 346(SC). WE HAVE HEARD LEARNED DR WHILE NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. IN THIS MA , ONE E ARLIER OCCASIONS ON 22.03.2019 AND 24.04.2019 , THE ASSESSEE HAS SOUGHT ADJOURNMENTS, WHILE ON 05.07.2019 AND TODAY I.E. 02.08.2019 WHEN APPEAL WAS CALLED FOR HEARING , NONE APPEARED ON BEHALF OF ASSESSEE. THE ISSUE BEING SO CLEAR AND NO MORE RES - INTEGRA IN VIEW OF AFORESAID HONBLE SUPREME COURT DECISION , WE RECALL THE ORDER IN ITA NO. 3921/MUM/2018 AND PLACE IT BEFOR E REGULAR BENCH FOR HEARING ON 26 TH SEPTEMBER, 2019. THE REGISTRY IS DIRECTED TO ISSUE NOTICE TO BOTH THE PARTIES. WE ORDER ACCORDINGLY. 2 . IN THE RESULT, M.A. NO. 60 /MUM/201 9 ARISING OUT OF APPEAL IN ITA NO. 3921 /MUM/201 8 FOR AY: 2009 - 10 FILED BY REVEN UE STAND ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 02.08 .2019 02 .0 8 .2019 S D / - S D / - ( MAHAVIR SINGH ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 02 .0 8 .2019 COPY TO MA NO. 60/MUM/2019 ARISING OUT OF ITA NO. 3921/MUM/201 8 3 | P A G E NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI