DEPUTY COMMISSIONER OF INCOME TAX 1 (1) (2), MUMBAI V. M/S. ELEL HOTELS AND INVESTMENTS LIMITED , MUMBAI

MA 807/MUM/2017

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1463 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 24-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Tax effect
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , ACCOUNTANT MEMBER M.A. NO. 807 /MUM./2017 ( ARISING OUT OF ITA NO. 7241 / MUM . / 20 0 7 ) ( ASSESSMENT YEAR : 20 0 3 04 ) DY. COMMISSIONER OF INCOME TAX CIRCLE 1(1)(2), MUMBAI . APPELLANT V/S ELEL HOTELS & INVESTMENTS LTD. MANDLIK HOUSE, MANDLIK ROAD COLABA, MUMBAI 400 001 PAN AAACE2846D . RESPONDENT REVENUE BY : SHRI V. JUSTIN ASSESSEE BY : SHRI AJAY WADHWA DATE OF HEARING 20 .0 7 .2018 DATE OF ORDER 28.09.2018 O R D E R PER SAKTIJIT DEY, J.M. THE REVENUE HAS FILED THIS APPLICATION , PURPORTEDLY , UNDER SECTION 254 (2) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) SEEKING RECALL OF THE ORDER DATED 3 RD MAY 2017 , PASSED IN ITA NO. 7241 /MUM./20 07 . 2 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , WHILE DISPOSING OFF THE APPEAL, THE TRIBUNAL HAS NOT TAKEN NOTE OF THE ORDER PASSED BY THE HON'BLE DELHI HIGH COURT IN ASSESSEES OWN CASE FOR 2 ELEL HOTELS & INVESTMENTS LTD. ASSESSMENT YEARS 2003 04 AND 2004 05 AGAINST ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R/W 153A OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ), WHEREIN, THE ISSUE WAS RESTORED TO THE TRIBUNAL FOR RE EXAMINATION. THUS, HE SUBMITTED THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL. 3 . T HE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , WHILE DISPOSING OFF THE APPE AL THE TRIBUNAL HAS FOLLOWED ITS OWN ORDER PASSED IN ASSESSEES CASE FOR ASSESSMENT YEAR 1995 96 AND 1997 98 . HE SUBMITTED, REVENUES APPEAL S AGAINST THE SAID ORDERS ARE PENDING BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. THEREFORE, THERE CANNOT BE ANY E RROR IN THE ORDER OF THE TRIBUNAL. FURTHER, T HE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE TAX EFFECT ON THE QUANTUM OF ADDITION DISPUTED BY THE DEPARTMENT IS BELOW THE MONETARY LIMIT OF ` 20 LAKH FIXED BY THE CBDT IN CIRCULAR NO. 3/2018, DATED 11 TH J ULY 2018. HENCE, THE APPEAL IN ANY CASE WILL NOT BE MAINTAINABLE. 4 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. IT IS EVIDENT, ON THE BASIS OF SUBMISSIONS MADE BY THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT THE ISSUE HAS BEEN DEC IDED IN FAVOUR OF THE ASSESSEE IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR S 1995 06 AND 1997 98 , THE TRIBUNAL HEARD THE APPEAL IN THE ABSENCE OF THE ASSESSEE AND UPHELD THE ORDER OF THE COMMISSIONER (APPEALS) IN 3 ELEL HOTELS & INVESTMENTS LTD. DELETING THE ADDITION. IN COURSE OF HEARING OF THE PRESENT APPLICATION, THE LEARNED COUNSELS APPEARING FOR BOTH THE PARTIES HAVE SUBMITTED BEFORE US THAT THE APPEALS PREFERRED BY THE DEPARTMENT AGAINST TRIBUNALS ORDER FOR ASSESSMENT YEARS 1995 96 AND 1997 98 ARE STILL PENDING BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. IN VIEW OF THE AFORESAID, WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL. IN ANY CASE OF THE MATTER, THE QUANTUM OF ADDITION DISPUTED BY THE DEPARTMENT IN THE PRESENT APPEAL IS ` 32,21,213. THE TAX EFFECT ON THE AFORESAID ADDITION WORKS OUT TO LESS THAN THE MONETARY LIMIT OF ` 20 LAKH FIXED BY THE CBDT IN CIRCULAR NO.3/2018, DATED 11 TH JULY 2018, FOR FILING APPEAL BEFORE THE TRIBUNAL. THAT BEING THE CASE, RECALLING OF THE APPEAL OR DER FOR FRESH HEARING OF THE APPEAL WOULD BE AN EXERCISE IN FUTILITY , SINCE , AS PER THE CBDT CIRCULAR REFERRED TO ABOVE, THE APPEAL FILED BY THE DEPARTMENT IS OTHERWISE NOT MAINTAINABLE AND HAS TO BE DISMISSED. IN VIEW OF THE ABOVE, WE DECLINE TO ENTERTAIN THE PRESENT APPLICATION FILED BY THE REVENUE. 5 . IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.09.2018 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 28.09.2018 4 ELEL HOTELS & INVESTMENTS LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI