ITO 12(3)(3), MUMBAI V. LAB DEVICE INDIA P.LTD, MUMBAI

MA 76/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4911 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 01-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND S/SHRI AMARJIT SINGH, JUDICIAL MEMBER M.A. N O . 76/ M/201 9 (ARISING OUT OF ITA NO. 2312 /MUM/201 7 ) ( / ASSESSMENT YEAR: 2009 - 10 ) ITO - 12(3)(3) ROOM NO.224, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 . / VS. M/S. LAB DEVICE INDIA PVT. LTD. 112, ATLANTA ESTATE, OPP. WESTERN EXPRESS HIGHWAY, NEAR VIRWANI INDUSTRIAL ESTATE, GOREGAON, EAST, MUMBAI - 400063. / . / . PAN/GIR NO. : AABCL0636K ( / APPELLANT ) / APPLICANT .. ( / RESPONDENT ) / DATE OF HEARING: 29 .0 3 .201 9 /DATE OF PRONOUNCEMENT: 22 . 05 . 2019 ORDER PER AMARJIT SINGH, J M THIS ORDER SHALL DISPOSE OF THE MISCELLA N EOUS APPLICATION BEARING NO. 76 /M/201 9 MOVED BY APPLICANT ARISING OUT OF ITA. NO. 2312 /M/1 7 FOR THE A.Y.2009 - 10 DATED 28 . 0 8 .201 8 . 2. THE BRIEF FACTS OF THE CASE ARE THAT THE REVENUE FILED AN APPEAL AGAINST THE ORDER OF THE CIT(A) WHICH WAS DECIDED BY HONBLE ITAT IN ITA. NO.2312/M/2017 BY VIRTUE OF ORDER DATED 28.08.2018. THE APPEAL WAS DECIDED ON THE BASIS OF THE TAX EFFECT WHICH WAS BELOW 20 LAC, BUT SUBSEQUENTLY THE CBDT CIRCULAR BEARING N O. 03/2018 DATED 11.07.2018 WAS RECTIFIED IN WHICH IT REVENUE BY: SHRI ABI RAMA KARTIKIYEN (DR) ASSESSEE BY: S HRI RAJESH KOTHARI (AR) MA 76 / MUM/201 9 IS SPECIFICALLY MENTIONED THAT THE ADDITION BASED UPON THE INFORMATION RECEIVED FROM THE EXTERNAL SOURCE IN THE NAT URE OF LAW ENFORCEMENT AGENCY SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GEN ERAL OF GST INTELLIGENCE (DGGI) THEN THE CASE IS NOT LIABLE TO BE W ITHDRAWN. THEREFORE, THERE IS A MISTAKE APPARENT ON RECORD, HENCE, THE ORDER DATED 28.08.2018 IS LIABLE TO BE RECALLED IN THE INTEREST OF JUSTICE. 3 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPR ESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE COPY OF ORDER DATED 28.08.2018 IS ON THE FILE. THE RELEVANT FINDING HAS BEEN GIVEN IN PARA NO. 5,6 & 7 WHICH IS HEREBY REPRODUCED AS UNDER.: - 4. WE HAD CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORIT IES BELOW AND FOUND THAT ISSUE IS COVERED BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y.2010 - 11 VIDE ORDER DATED 07/11/2017. MOREOVER, THE TAX EFFECT IN THIS APPEAL IS NOT EXCEEDING RS.20 LAKHS. 5. UNDER THE POWER VESTED BY SEC. 268A(1) OF THE I T. ACT, CBDT HAS RECENTLY ISSUED CIRCULAR NO. 3/2018 DATED 11.07.2018 INSTRUCTING THE AUTHORITIES BELOW THAT DEPARTMENTAL APPEAL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DOES NOT EXCEED RS. 20 LAKHS. 6. SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIRECTED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX EFFECT IS LESS THAN 20 LAKHS SHOULD BE EITHER WITHDRAWN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIV E. 7. THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEPTIONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DISPUTE IN THIS DEPARTMENTAL APPEAL DOES NOT EXCEED THE LIMIT OF RS. 20 LAKHS AS SET OUT BY CBDT, SUCH APPEAL IS NOT MAINTAINABLE IN VIE W OF FORE GOINGS. ACCORDINGLY THE APPEAL OF THE DEPARTMENT IS DISMISSED AS NOT PRESSED/WITHDRAWN AND HENCE INFRUCTUOUS. 4. ON APPRAISAL OF THE ABOVE MENTIONED FINDING, WE NOTICED THAT THE ONE OF THE GROUND TO DISMISSED THE APPEAL IS TAX EFFECT WHEREAS THE OTHER GROUND IS THAT THE CASE OF THE ASSESSEE WAS DULY COVERED BY HONBLE ITAT BY ASSESSEES OWN CASE FOR THE A.Y. 2010 - 11 BY VIRTUE OF ORDER DATED 07.11.2017 . SINCE THE MATTER OF CONTROVERSY HAS BEEN ADJUDICATED NOT ONLY THE BASED ON CIRCULAR NO.03/2018 DATED 11.07.2018 BUT ALSO BASED UPON ON MERITS BEING DULY COVERED BY DECISION OF HONBLE ITAT IN THE ASSESSEES OWN CASE FOR THE A.Y. 2010 - 11 DATED 11.07.2017 , THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THERE IS MA 76 / MUM/201 9 NO MISTAKE APPARENT ON RE CORD. HENCE, THE CONTENTION OF THE REVENUE NOWHERE CAME WITHIN THE AMBIT OF PROVISIONS U/S 254(2) OF THE ACT, HENCE, THE PRESENT MISCELLANEOUS APPLICATION IS DISMISSED . IN THE RESULT , THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS HEREBY ORDERED TO BE DISMISSED . ORDER WAS PRON OUNCED IN TH E OPEN COURT ON 22 .05 .2019 SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, DT: 22 . 0 5 .2019 VIJAY COPY TO : 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) 4 . THE CIT 5 . THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, A , BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES