DEPUTY COMMISSIONER OF INCOME TAX 10(2)(2), MUMBAI V. MUCHHALA MAGIC LANDS PRIVATE LIMITED , MUMBAI

MA 713/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6939 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 31-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: D C JAIN
• Keywords: Gift; Retrospective amendment; Tax effect
• Section: 12A

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER M.A. NO.713 & 714/MUM/2017 (ARISING OUT OF WTA NOS.01 & 02/MUM/2015) ASSESSMENT YEAR: 2008-09 & 2009-10 DY. COMMISSIONER OF WEALTH TAX-8(2), R. NO.209, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 / VS. M/S MUCHHALA MAGIC LANDS PVT. LTD. AMAR MAHAL GROUND FLOOR, A.D. MARG, NEAR CHANDAN CINEMA, JUHU, MUMBAI-400049 ( ' / REVENUE) ( #$ % /ASSESSEE) P.A. NO. AABCM1017B ' / REVENUE BY SHRI V. VIDHYADHAR-DR #$ % / ASSESSEE BY SHRI D.C. JAIN & ' ' % ( / DATE OF HEARING : 20/07/2018 ' % ( / DATE OF ORDER: 20/07/2018 M/S MUCHHALA MAGIC LANDS PVT. LTD. M.A. NO.713 & 714/MUM/2017 (ARISING OUT OF WTA NO.01,02 /MUM/2015 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) BOTH THESE MISCELLANEOUS APPLICATIONS FOR ASSESSMENT YEAR 2008-09 AND 2009-10 ARE BY THE REVE NUE SEEKING RECALLING OF THE ORDER OF THE TRIBUNAL DATE D 16/02/2017 IN WTA NOS.01 & 02/MUM/2015 ON THE GROUND THAT BOTH THESE APPEALS WERE DISMISSED ON TH E PLEA OF BELOW PRESCRIBED MONETARY LIMIT. 2. THE CONTENTION OF LD. DR SHRI V. VIDHYADHAR IS THAT AS PER BOARD CIRCULAR NO.21 OF 2015, THE MONET ARY LIMIT IS NOT APPLICABLE TO WEALTH TAX APPEALS, THER EFORE, THERE IS AN APPARENT MISTAKE IN THE ORDER, WHICH MA Y BE RECALLED. ON THE OTHER HAND, SHRI D.C. JAIN, LD. CO UNSEL FOR THE ASSESSEE, INVITED OUR ATTENTION TO THE ORDER OF THE HYDERABAD BENCH OF THE TRIBUNAL IN DY. COMMISSIONER OF WEALTH TAX VS NB. SYED JAFFAR ALI KHAN (2005) 94 IT D 21 (HYD) AND ANOTHER DECISION IN THE CASE OF CIT VS CA MCO COLOUR COMPANY (254 ITR 565)(BOM.), ORDER DATED 26/11/2001(RELEVANT PAGE 567), WHEREIN, IN CLAUSE-5 , IT HAS BEEN MENTIONED THAT THE INSTRUCTIONS/CIRCULAR I S M/S MUCHHALA MAGIC LANDS PVT. LTD. M.A. NO.713 & 714/MUM/2017 (ARISING OUT OF WTA NO.01,02 /MUM/2015 3 APPLICABLE TO OTHER DIRECT TAXES ALSO I.E. WEALTH T AX, GIFT TAX, AND ESTATE DUTY, ETC. 2.1. HOWEVER, THE LD. DR CONTENDED THAT IN LATER INSTRUCTIONS (CIRCULAR NO.21 OF 2015), IT WILL NOT BE APPLICABLE OTHER THAN INCOME TAX APPEAL. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE P ERUSED THE ORDER OF THE TRIBUNAL DATED 16/02/2017, WHEREIN , THE APPEALS OF THE REVENUE WERE DISMISSED ON MONETARY L IMIT. THE CONTENTION OF THE LD. DR IS THAT CBDT INSTRUCTI ON NO.21 OF 2015 DATED 10/12/2015 IS APPLICABLE ONLY T O INCOME TAX APPEALS. 2.3. WE NOTE THAT IN PARA-9 & 10 OF AFORESAID INSTRUCTIONS DATED 10/12/2015, IT HAS BEEN MENTIONE D AS UNDER:- 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE SHALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATT ERS OTHER THAN INCOME TAX. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVERNED BY RELEVANT PROVISIONS OF STATUTE & RULES. FURTHER, FILING OF A PPEAL IN CASES OF INCOME TAX, WHERE THE TAX EFFECT IS NOT QU ANTIFIABLE M/S MUCHHALA MAGIC LANDS PVT. LTD. M.A. NO.713 & 714/MUM/2017 (ARISING OUT OF WTA NO.01,02 /MUM/2015 4 OR NOT INVOLVED, SUCH AS THE CASE OF REGISTRATION O F TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT, 1961, SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AND DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFOR TH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRA WN/NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE G OVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT T HE TIME WHEN SUCH APPEAL WAS FILED. 2.4. IF THE AFORESAID INSTRUCTION (UNDERLINED PORT ION) IS ANALYZED, IT IS CLEAR THAT THE INSTRUCTION WILL NOT APPLY TO THE CASES OTHER THAN INCOME TAX AND FURTHER APPLY W ITH RETROSPECTIVE EFFECT TO THE APPEALS WHICH ARE PENDI NG AND TO BE FILED HENCEFORTH. THUS, IT IS CLEAR THAT THE ORD ER OF THE TRIBUNAL IS DATED 16/02/2017, WHEREAS, THE AFORESAI D INSTRUCTIONS ARE DATED 10/12/2015, THEREFORE, WE FI ND MERIT IN THE ARGUMENT OF LD. DR. SO FAR AS, THE DEC ISION IN THE CASE OF DY. COMMISSIONER OF WEALTH TAX VS NB. S YED JAFFAR ALI KHAN, IS CONCERNED, THIS DECISION IS BAS ED UPON CBDT INSTRUCTION NO.1979 DATED 27/03/2000 AND INSTRUCTION NO. 1612 DATED 06/04/1985. LIKEWISE, TH E DECISION FROM HON'BLE BOMBAY HIGH COURT IN CIT VS C AMCO M/S MUCHHALA MAGIC LANDS PVT. LTD. M.A. NO.713 & 714/MUM/2017 (ARISING OUT OF WTA NO.01,02 /MUM/2015 5 COLOUR COMPANY, ORDER DATED 26/11/2001, IS CONCERNE D, THAT IS ALSO BASED UPON CIRCULAR DATED 27/03/2000 (INSTRUCTION NO.1979). IN THE LATER CIRCULAR, RELIE D UPON BY LD. DR, IS APPLICABLE ONLY FOR INCOME TAX APPEALS, THEREFORE, THE ORDER OF THE TRIBUNAL DATED 16/02/2017 IS REC ALLED FOR FRESH HEARING BEFORE A REGULAR BENCH. THE REGISTRY IS DIRECTED TO FIX THE APPEALS OF THE REVENUE FOR FRES H HEARING FOR 27 TH AUGUST, 2018. SINCE, THE NEXT DATE OF HEARING HAS BEEN PROVIDED IN THIS ORDER, NO SEPARATE NOTICE OF HEARING WILL BE ISSUED. THE MISCELLANEOUS APPLICATIONS OF T HE REVENUE, ARE THEREFORE, ALLOWED. FINALLY, THE MISCELLANEOUS APPLICATIONS OF THE REVE NUE ARE ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 20/07/2018. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & MUMBAI; * DATED: 20/07/2018 F{X~{T? P.S / +' M/S MUCHHALA MAGIC LANDS PVT. LTD. M.A. NO.713 & 714/MUM/2017 (ARISING OUT OF WTA NO.01,02 /MUM/2015 6 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 0./ / THE RESPONDENT. 3. 1 1 & 2% ( ,- ) / THE CIT, MUMBAI. 4. 1 1 & 2% / CIT(A)- , MUMBAI 5. 4'5 % , 1 ,-( , 6 , & / DR, ITAT, MUMBAI 6. 7# 8 / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , & / ITAT, MUMBAI,