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Wham Investment P.Ltd , vs Department Of Income Tax

Income Tax Appellate Tribunal20 March 2015

Ratio decidendi

The rule this decision rests on

A CBDT instruction fixing a monetary threshold for filing departmental appeals applies to appeals already pending on the date of the instruction, not only to appeals filed after it; the Tribunal adopts this view as settled by the High Court and co-ordinate benches, and an appeal where the tax effect (including notional tax) is below the prescribed limit is not maintainable.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE INCOME TAX APPELLATE TRIBUNAL,MUMBAI BENCH "G", MUMBAIBEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER ANDSHRI SANJAY GARG, JUDICIAL MEMBERMA No.07/M/2015(Arising out of ITA No.2090/M/2012)Assessment Year: 2007-08The Asst. Commissioner of M/s. Wham InvestmentsIncome Tax - 3(3), Pvt. Ltd.,thRoom No.668, 6 Floor, 78A & 78B Jolly MakerVs.Aayakar Bhavan, Chamber No.2,M.K. Road, 7th Floor, Nariman Point,Mumbai - 400 020 Mumbai - 400021PAN: AAACW 0522F(Appellant) (Respondent)Assessee by : Shri M. Subramaniam, A.R.Revenue by : Shri Vivek A. Perampurna, D.R.Date of Hearing : 20.03.2015Date of Pronouncement : 20.03.2015ORDERPer Sanjay Garg, Judicial Member:

The present miscellaneous application has been filed by the Revenue under section 254 of the Act stating that there is an error on record has occurred in the order dated 24.07.2014 of this Tribunal passed in ITA No.2090/M/2012 in relation to A.Y. 2007-08.

2 MA No.07/M/2015 (Arising out of ITA No.2090/M/2012 M/s. Wham Investments Pvt. Ltd.

2. It has been stated that the appeal of the Revenue, vide order dated 24.07.2014, was dismissed on the ground that the tax effect in the appeal of the Revenue was less than Rs.3 lakhs. In the application, it has been submitted that the notional tax effect involved in this case is Rs.3,99,929/- and hence the same was required to be heard on merits.

3. The Ld. A.R., on the other hand, has submitted that in this case the income of the assessee was assessed under section 115JB of the Act and the tax effect in relation to section 115JB assessment was less than Rs.3 lakhs. He has submitted that the theory of notional tax was not applicable to the case in hand.

4. We have considered the rival contentions of both the parties. Admittedly, as stated in the application itself, even the notional tax effect in this case has been calculated at Rs.3,99,929/- which amount is below the prescribed limit of 4 lakhs for filing the appeal by the department before the Tribunal by the Central Board of Direct Taxes (CBDT) vide Instruction No.5 dated 10.07.2014 . The Hon'ble Bombay High Court in the case of 'Madhukar Inamdar' - 185 Taxmann. 101 has held that CBDT circular is applicable where the appeals are pending and not only to the appeals which are to be filed after the circular was issued. Similar view has been adopted by the co- ordinate benches of this tribunal in the case of 'ITO vs. Surendermal R. Lodha' in ITA No.1628/Mum/11 for the Assessment Year 2004-05 decided on 25.08.14 and further in the case of 'ITO vs. Shri Kuldeep Ganesh Hake' in ITA No.4284/M/2013 for the Assessment Year 2008-09 decided on 17.09.2014. In view of the aforementioned Instructions of the CBDT and the above judicial decisions on the issue, the appeal of the Revenue is still not maintainable in view of fact that the tax effect less than Rs.4 lakhs. Thus, we do not find any 3 MA No.07/M/2015 (Arising out of ITA No.2090/M/2012 M/s. Wham Investments Pvt. Ltd.

reason to recall the order dated 24.07.2014. Accordingly, the application of the Revenue is hereby dismissed.

Order pronounced in the open court on 20.03.2015.

Sd/- Sd/- (R.C. Sharma) (Sanjay Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER

Mumbai, Dated: 20.03.2015.

* Kishore, Sr. P.S.

Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench

//True Copy//

By Order

Dy/Asstt. Registrar, ITAT, Mumbai.

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