THE Dy. CIT, CIRCLE - 2(1), Vijayawada V. Gudapati Nageswara Rao, Vijayawada

MA 78/VIZ/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 6046 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 13-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V APPALA RAJU
• Keywords: Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M.P. .NO. 78 /VIZAG/ 201 7 (ARISING OUT OF ITA NO. 40 /VIZ/2015 AND CO NO.59/VIZ/2013 ) ( / ASSESSMENT YEAR: 200 7 - 0 8 ) DCIT, CIRCLE - 2(1) VIJAYAWADA VS. GUDAPATI NAGESWARA RAO 64 - 9 - 7C, PATAMATA LANKA VIJAYAWA DA [PAN : ACYPG7096G] ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI V.APPALA RAJU , DR / RESPONDENT BY : SHRI G.V.N. HARI, AR / DATE OF H EARING : 22 .1 2 .2017 / DATE OF PRONOUNCEMENT : 22 .12.2017 / O R D E R PER D.S. SUNDER SINGH , ACCOUNTANT MEMBER : THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVENUE AGAINST THE ORDER OF THE ITAT, VISAKHAPATNAM IN ITA NO. 40/VIZ/2013 DATED 2 M.A. NO. 78 /VIZAG/201 7 GUDAPATI NAGESWARA RAO, VIJAYAWADA 16/06/2077. IN THIS CASE THE REVENUE HAS FILED APPEAL ON 13.01.2013 AGAINST ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [ CIT - (A)] , VI JAYAWADA VIDE ITA NO. 282 / CIT(A) / VJA / 09 - 10 DATED 01 . 11 .201 2 FOR THE ASSESSMENT YEAR 20 07 - 0 8 . 2. DURING THE APPEAL HEARING, THE LD.AR OF THE ASSESSEE BROUGHT TO THE NOTICE OF THE BENCH THA T THE TAX EFFECT IN THIS CASE WAS BELOW RS.10 LAKHS AND FOLLOWING THE CBDT CIRCULAR NO.21/2015, THE APPEAL WAS DISMISSED AS NOT MAINTAINABLE VIDE ITA NO.40/VI Z/2013 DATED 16.06.2017. THE REVENUE HAS FILED MISCELLANEOUS APPLICATION STATING THAT THE TAX EFFECT INCLUDING THE S UR CHARGE AND EDUCATION CESS AS PER THE CONSEQUENTIAL ORDER, IS R S.10,38,571/ - WHICH IS MORE THA N RS.10 LAKHS, HENCE REQUESTED TO RECALL THE ORDER AND TO DECIDE THE CASE ON MERITS. 3. DURING THE APPEAL HEARING, THE LD.DR SUBMITTED THAT THE TAX INCLUDES SUR CHARGE AND EDUCATION CESS AND THE Y ARE FORMING PART OF TAX. HENCE, THERE WAS A MISTAKE IN THE ORDER, HENCE REQUESTED TO RECALL THE ORD ER. 3 M.A. NO. 78 /VIZAG/201 7 GUDAPATI NAGESWARA RAO, VIJAYAWADA 4. ON THE OTHER HAND, THE LD.AR ARGUED THAT THE ISSUE IS WITH REGARD TO TAX EFFECT WHICH WAS CONSIDERED BY THE HONBLE ITAT WHILE DISPOSING THE APPEAL WITH REGARD TO THE TAX EFFECT AND GIVEN A RULING THAT TAX DOES NOT INCLUDE SUR - CHARGE AND EDUCATION CESS, HENCE, ARGUED THAT THERE IS NO MISTAKE APPARENT FROM RECOR D WHICH REQUIRES RECTIFICATION. ACCORDINGLY REQUESTED TO DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL PLACED ON RECORD. THE HONBLE ITAT HAS DISMISSED THE APPEAL AND GIVEN A FINDING THAT THE TAX EFFECT IS BELOW RS.10 LAKHS AFTER EXCLUDING SUR CHARGE, EDUCATION CESS ETC., FOR READY REFERENCE, WE EXTRACT RELEVANT PART OF THE ITATS ORDER WHICH READS AS UNDER : 5. IT IS WELL SETTLED THAT WHILE CONSIDERING THE TAX EFFECT,T HE LATEST CIRCULAR HAS TO BE TAKEN INTO CONSIDERATION, AS PER WHICH, IF THE TAX EFFECT EXCLUDING SURCHARGE, EDUCATION CESS ETC. IS BELOW RS.10 LAKHS, THE REVENUE IS NOT AUTHORIZED T O FILE AN APPEAL AND IF IT IS FILED, THEY SHOULD WITHDRAW THE APPEAL. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, I DISMISS THE APPEAL FILED BY THE REVENUE SINCE IT IS CONTRARY TO THE BINDING CIRCULAR ISSUED BY THE CBDT . 5.1. WHILE DISPOSING THE APPE AL, THE ITAT HAS CONSIDERED THE TAX EFFECT AND GIVEN A RULING THAT SUR CHARGE, EDUCATION CESS ETC. , REQUIRED TO BE EXCLUDED WHILE CONSIDERING THE TAX EFFECT. SINCE THE ISSUE WAS CONSIDERED BY THE ITAT AND GIVEN A RULING THAT THE TAX EFFECT IN THIS CASE IS BELOW RS.10 4 M.A. NO. 78 /VIZAG/201 7 GUDAPATI NAGESWARA RAO, VIJAYAWADA LAKHS , THERE IS NO ERROR IN THE ORDER OF THE ITAT WHICH CALLS FOR INTERFERENCE. HENCE, THE M ISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 6 . IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED . T HE AB OVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22 ND D EC 2017. SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM: /DATED : 2 2 .12.2017 L.RAMA, SPS 5 M.A. NO. 78 /VIZAG/201 7 GUDAPATI NAGESWARA RAO, VIJAYAWADA / COPY OF THE ORDER FORWARDED TO : - 1. / THE APPELLANT DCIT, CIRCLE - 2(1), VIJAYAWADA 2. / THE RESPONDENT - GUDAPATI NAGESWARA RAO, 64 - 9 - 7C, PATAMATA LANKA, VIJAYAWADA 3. THE COMMISSIONER OF INCOME TAX, VI JAYAWADA 4 . ( ) / THE CIT (A) , VIJAYAWADA 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM