ITO 1(2)(4), MUMBAI V. PERFECT NANO SOLAR P. LTD, MUMBAI

MA 78/MUM/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8528 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-11-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ADITYA K. SHARMA
• Keywords: Period of limitation; Tax effect; Time period of passing order
• Section: 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL “C” Bench, Mumbai Shri Shamim Yahya (AM) & Shri Pavankumar Gadale (JM) M.A.No. 78/Mum/2021 in I.T.A. No. 89/Mum/2017 (Assessment Year 2009-10) ITO-1(2)(3) 527, Aayakar Bhavan M.K. Road Churchgate Mumbai-400 020. Vs. M/s. Perfect Nano Solar Pvt. Limited B-17, 1 st Floor, Chottu Terrace, SBS Road Colaba, Mumbai-400 005. PAN : AAECP5136F (Appellant) (Respondent) Assessee by Shri Aditya K. Sharma Department by Shri Milind S. Chavan Date of Hearing 29.10.2021 Date of Pronouncement 15.11.2021 O R D E R Per Shamim Yahya (AM) : By way of this Miscellaneous Application Revenue seeks recall of the order of the Tribunal in ITA No. 89/Mum/2017 vide order dated 13.9.2019. 2. The Revenue’s contention is that the ITAT has dismissed the revenue’s appeal on account of tax effect. However, as per the working the tax effect is more than Rs. 50,00,000/-. The Revenue’s submission are as under :- “The Hon'ble ITAT has dismissed the appeal of the revenue on the technical ground and not on the basis of the merit of the case. The issue relates to deletion of addition made u/s. 68 of the Act on account of unexplained cash credits amounting to Rs. l,47,25,000/-was not discussed in the order but disposed off on the basis of tax effect being below the prescribed limit as per CBDT Circular No. 17/2019 dated 08/08/2019. However, On perusal of the assessment order it is seen that the tax effect of this case for A.V. 2009-10 is Rs. 50,03,517/-. In view of the above, the tax effect is more than Rs. 50 lacs and appeal needs to be restored. The working of which is shown below:- M/s. Perfect Nano Solar Pvt. Limited 2 Particulars Amount (in Rs.) Returned Income (-) 4444/- Amount of Addition 1,47,25,000/- Assessed Income 1,47,20,560/- Tax @ 30% 44,16,168/- Surcharge® 10% 4,41,616/- Education Cess @ 3% 1,45,733/- Total Tax Effect 50,03,517/- 3. Learned Counsel of the assessee in this regard pointed out that this appeal by the Revenue is delayed. He however submitted that court have held that sur-charge and education cess cannot be considered as part of tax. If the same is excluded the tax effect is below Rs. 50,00,000/-. 4. Learned Departmental Representative in this regard pointed out that the delay in filing the appeal is due to Covid-19 Pandemic and proper application by the Revenue in this regard has been produced. Copy of the prayer submitted by the revenue in this regard is as under :- “This is my sincere prayer to submit before the Hon'ble Member ITAT, C- Bench, Mumbai It is submitted that the above delay in filing of Miscellaneous Appeal not because of negligence or deliberate on the part of A.O. as Hon'ble Members known very well that due to Covid-19 pandemic. The Hon'ble Supreme Court have extended the period further from stages where appeal was pending as on 31/03/2020. "Hon'ble Supreme Court of India has taken suo-motu cognizance of the situation arising out of COVID-19 and period of limitation has been decided/directed to be extended w.e.f. 15.03.2020 till further order to be passed by the court [write petition (Civil) No(s). 3/2020]. Subsequent to the Order of Hon'ble Supreme Court of India has taken re-cognizance for extension of time limitation vide order dated 08.03.2021. In cases where the limitation would have expired during the period between 15.03.202O till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all person shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply." M/s. Perfect Nano Solar Pvt. Limited 3 2. Submission of Miscellaneous Application has been delayed due to COVID- 19, Pandemic. 3. This is my prayer, I humbly requesting you to take lenient view to accept as 'Affidavit' on the direction of the Hon'ble Member, ITAT C Bench, Mumbai with request to admit Miscellaneous Application of the Department and condone the delay.” 5. Upon careful consideration we have condoned the delay. 6. Further learned Departmental Representative pointed out that CBDT Circular in terms of which this appeal is not maintainable duly prescribed that the tax effect include the aspect being objected by the learned counsel. Hence he submitted that the tax effect is above the limit fixed by the CBDT circular. It was pointed out by the Bench to learned counsel that the argument being canvassed by him actually amounts to challenge to the said Circular in which cess etc. have been included in tax computation of tax effect. Hence, the same cannot be the subject matter of appeal before the ITAT and such issues are under writ jurisdiction of Hon'ble higher court. Learned Counsel of the assessee could not make any cogent submission to the contrary. Accordingly we accept that the tax effect in this case as per CBDT Circular in relation to which this appeal is claimed to be not maintainable is more than Rs. 50,00,000/-. Hence, there is a mistake apparent from record in the ITAT order. Hence, in the interest of justice the same is recalled. Since the assessee’s cross objection was also dismissed alongwith revenue’s appeal on the premise that the same is in support of learned CIT(A)’s order, the same also stands recalled. Hence, Revenue’s appeal and cross objection stand recalled. The Registry is directed to fix these cases in the normal course of hearing. 6. In the result, Miscellaneous Application stands allowed. Pronounced in the open court on 15.11.2021. Sd/- Sd/- (PAVANKUMAR GADALE) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated : 15/11/2021 M/s. Perfect Nano Solar Pvt. Limited 4 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai