Alois Gutenberg Machines P.Ltd, Mumbai vs Department Of Income Tax

आयकर अपील य अ धकरण, मंब ु ई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'A' MUMBAI सव ी आय.पी. बंसल, या यक सद य एवं डी. क णाकर राव,ु लेखा सद य

BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND

SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.6028/MUM/2012 नधा रण वष /Assessment Year 2008-09 The I TO 6(1)(2), बनाम/ M/s. Alois Gutenberg Room No.503, Aaykar Machines P. Ltd.

Vs. Bhavan, MK Road, 3,Mayflower, Plot No.139, Mumbai 400020 Sector -12, Vashi, Navi Mumbai 400703

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AADCA 2138F (अपीलाथ /Appellant) .. ( यथ / Respondent)

C.O.No.260/Mum/2013 (Arising out of I TA No.6028/Mum/2012, A.Y. 2008-09) M/s. Alois Gutenberg Machines बनाम/ The I TO 6(1)(2), P. Ltd. Room No.503, Aaykar Vs. 3,Mayflower, Plot No.139, Bhavan, MK Road, Sector -12, Vashi, Mumbai 400020 Navi Mumbai 400703 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AADCA 2138F Cross Objector .. Appellant in appeal

Revenue by Shri Jeevanlal Lavidiya Assesseee by Ms. Ritika Agarwal सन ु वाई क" तार$ख / Da te o f Hearing : 10/06/2015 घोषणा क" तार$ख /Date of Pronouncement : 10/06/2015

आदे श / O R D E R

PER I.P.BANSAL,J.M:

This appeal is filed by the Revenue and Cross Objection is filed by the assessee. They are directed against order passed by Ld. CIT(A)-14, Mumbai dated 31/07/2012 for assessment year 2008-09. Grounds of appeal read as under:

2 आयकर अपील सं. / ITA No.6028/MUM/2012 नधा रण वष /Assessment Year 2008-09& C.O. No.260/Mum/2013

Grounds of Revenue's Appeal:

1. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by the AO amounting to Rs. 12,46,016/- representing the disallowance of expenditure without appreciating the fact that the assessee is not carrying on the business during the impugned year and accordingly no business expenditure is allowable"

2. "On the facts and circumstances of the case and in law, the Ld. C!T(A) erred in ignoring the fact that the assessee did not discharge its onus of providing evidence in the form of bills and vouchers to establish the genuineness of expenses."

Grounds of Assessee's Cross Objection:

The respondent individual is aggrieved by the order passed by Ld. CIT(A)-14, Mumbai and is in appeal:

1. BECAUSE, the Ld. CIT(A) has erred in law in upholding the validity of the assessment order even though that it had been passed erroneously.

2.BECAUSE, the Ld. CIT(A) has erred in law and on facts in holding that the consultancy and advisory fees amounting to Rs.750,000/- was in the nature of "Income from Other Sources"instead of "Profit and Gains from Business or Professions".

2. The return of income was filed by the assessee at nil and it has been assessed at an income of Rs.13,09,100/- by way of an ex-parte order under section 144 of the Income Tax Act, 1961(the Act). The Ld. CIT(A) has deleted the addition to the extent of Rs.12,46,016/- against which the Revenue is aggrieved and filed aforementioned grounds of appeals.

3. During the course of hearing it was found that tax effect with regard to deletion agitated by the Revenue is less than Rs.4.00 lacs. Vide CBDT Instruction No.5/2014 (F.No.279/MISC.142/2007-ITJ(PT)] dated 10/07/2014, the tax effect limit for filing the appeal before the Tribunal was enhanced from Rs.3.00 lacs to Rs.4.00 lacs.

4. We have considered the submissions of both the parties. However, according to following decisions of Hon'ble Jurisdictional High Court, such notifications issued under section 268A would be applicable even to the appeals filed before issue of the notification if the limit is enhanced:

3 आयकर अपील सं. / ITA No.6028/MUM/2012 नधा रण वष /Assessment Year 2008-09& C.O. No.260/Mum/2013

1. In the case of CIT vs. Smt. Vijaya Kavekar (2013 30 taxmann.com 412) it was held as under:

Section 260A, read with Section 268A, of the Income-tax Act, 1961 - High Court - Appeals to - Tax effect - Whether Instruction No. 3 of 2011, dated 9- 2-2011, specifying monetary limit of Rs. 10 lakhs for maintainability of appeal before High Court is applicable on pending appeals as well - Held, yes - Whether, therefore, where tax effect in revenue's appeals was less than Rs. 10 lakhs which was filed even prior to issue of Instruction dated 9-2-2011, same was to be dismissed being non-maintainable - Held, yes [In favour of assessee]

2. In the case of CIT vs. Madhukar Imandar (2009 185 Taxman 101] it was held as under:

Section 268A, read with section 119, of the Income-tax Act, 1961 - Appeal or application for reference - Filing of, by income-tax authority - Whether circular/Income-tax Instruction No. 5 of 2008, dated 15-5-2008 issued by CBDT directing income-tax authorities not to file appeals if tax effect is less than Rs. 4 lakhs would be applicable to cases pending before High Court as on 15-5-2008 either for admission or for final disposal, even though said appeals and/or petitions were filed before High Court prior to 15-5- 2008 - Held, yes

5. In this view of the situation, we dismiss the appeal filed by the Revenue on account of low tax effect as per aforementioned instruction issued by CBDT.

6. So far as it relates to cross objection filed by the assessee, in view of dismissal of Revenue's appeal, Ld. AR did not press the cross objection and she endorsed on Form No.36A as "not pressed". Accordingly, cross objection filed by the assessee is dismissed being not pressed.

4 आयकर अपील सं. / ITA No.6028/MUM/2012 नधा रण वष /Assessment Year 2008-09& C.O. No.260/Mum/2013

7. In the result, the appeal filed by the Revenue is dismissed on account of low tax effect and cross objection filed by the assessee is dismissed being not pressed.

Order pronounced in the open court on 10/06/2015 आदे श क" घोषणा खुले यायालय म* +दनांकः 10/06/2015 को क" गई ।

Sd/- Sd/- (डी. क णाकर रावु / D.KARUNAKARA RAO) (आय.पी. बंसल / I.P. BANSAL) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai; +दनांक Dated 10/06/2015 आदे श क त ल प अ!े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. आयकर आयु/त(अपील) / The CIT(A)- 4. आयकर आयु/त / CIT

5. 0वभागीय त न2ध, आयकर अपील$य अ2धकरण, मुंबई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER, स या0पत त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai व. न.स./Vm, Sr. PS