ITO 8(2)(4), MUMBAI v. OCTOPUS SYSTEMS P. LTD, MUMBAI

ITA 3952/MUM/2010 | 2005-2006
Pronouncement Date: 20-07-2011 | Result: Dismissed

Appeal Details

RSA Number 395219914 RSA 2010
Assessee PAN AAACO3347F
Bench Mumbai
Appeal Number ITA 3952/MUM/2010
Duration Of Justice 1 year(s) 2 month(s) 6 day(s)
Appellant ITO 8(2)(4), MUMBAI
Respondent OCTOPUS SYSTEMS P. LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 20-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 20-07-2011
Date Of Final Hearing 11-07-2011
Next Hearing Date 11-07-2011
Assessment Year 2005-2006
Appeal Filed On 14-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C BEFORE SHRI D.K. AGARWAL J.M. AND SHRI R.K. PANDA A.M. ITA NO. 3952/MUM/2010 ASSESSMENT YEAR 2005-06 INCOME TAX OFFICER -8(2)-4 R. NO. 213 2 ND FLOOR AAYKAR BHAWAN M.K. ROAD MUMBAI - 20. VS. M/S OCTOPUS SYSTEMS PVT. LTD. 610/611 SAGARTECH PLAZA ANDHERI (E) MUMBAI -72. PAN AAACO3347F APPELLANT RESPONDENT APPELLANT BY SHRI ANEXANDER CHAN DY RESPONDENT BY NONE ORDER PER R.K. PANDA A.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DT. 23.2.2010 OF CIT(A)- 17 MUMBAI RELATING TO A.Y. 2005-06. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD CIT(A) ERRED IN DIRECTING THE A.O. T O DEDN. U/S 10B ON THE ENTIRE PROFITS COMPUTED FROM BUSINESS CO MPLETELY DISREGARDING THE PROVISIONS OF SUB-SECTION 4 AND WI THOUT APPRECIATION OF FACTS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD CIT(A) ERRED HOLDING THAT THE ASSESS EE IS ENTITLED FOR DEDN. FOR CONSECUTIVE TEN YEARS FROM THE YEAR 2 000 WITHOUT APPRECIATING THE FACTS OF THE CASE. 3. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. T HEREFORE THE MATTER IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. D.R. ITA 3952/M/10 OCTOPUS SYSTEMS P. LTD. 2 4. THE LD. D.R. FILED A COPY OF THE LETTER ADDRESSE D BY THE A.O. TO THE SR. A.R. ITAT ACCORDING TO WHICH THE TAX EFFECT IN VOLVED IN THIS APPEAL FILED BY THE REVENUE IS ` 2 18 066/-. HE SUBMITTED THAT IN VIEW OF THE CBDT INSTRUCTION NO. 3 DT. 9.2.2011 THE MONETARY LI MIT FOR FILING THE DEPARTMENTAL APPEAL BEFORE THE TRIBUNAL HAS BEEN FI XED AT ` 3 LACS. SINCE THE MONETARY LIMIT IN THE IMPUGNED APPEAL IS LESS THAN ` 3 LACS THE APPEAL FILED BY THE DEPARTMENT HAS TO BE DISMIS SED. 5. AFTER HEARING THE LD. D.R. AND ON PERUSAL OF THE LETTER ADDRESSED BY THE A.O. WE FIND THE MONETARY LIMIT IN THE IMPUGNE D APPEAL FILED BY THE REVENUE IS ` 2 18 066/-. WE FIND THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF LAXMI JEWEL PVT. LTD. IN ITA NO. 216 5/MUM/2010 FOR A.Y. 2004-05 HAS HELD AS UNDER:- WE HAVE CONSIDERED THE ISSUE. THERE IS NO DOUBT T HAT THE TAX EFFECT IN THIS CASE IF ONLY ` 2 07 512/-. AS PER INSTRUCTION NO. 3 OF 2011 DT. 9.2.2011 APPEAL BEFORE APPELLATE TRIBUNAL CAN BE FI LED WHERE THE TAX EFFECT EXCEEDS THE MONETARY LIMIT OF ` 3 00 000/-. HOWEVER CONSIDERING THE SIMILAR SITUATION WHERE TAX LIMITS WERE MODIFIED BY THE CBDT INSTRUCTION NO. 5 OF 2008 THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS MADHUKAR K. INAMDAR (HUF) (SUPRA) HELD THAT THE CIR CULAR WILL BE APPLICABLE TO THE CASES PENDING BEFORE THE COURT EI THER FOR ADMISSION OR FOR FINAL DISPOSAL. IN VIEW OF THE ORDER OF THE JURISD ICTIONAL HIGH COURT WE HOLD THAT INSTRUCTION NO. 3 DT. 9.2.2011 IS APPLICABLE F OR THE APPEAL PREFERRED BY THE REVENUE. THEREFORE THE APPEAL IS DISMISSED ON THE ISSUE OF TAX EFFECT INVOLVED. EVEN OTHERWISE THERE IS NO CASE FOR THE REVENUE ON MERITS AS THE ISSUE WAS HELD IN AGAINST THE REVENUE BY THE ITAT O RDER IN THE CASE OF LIVING STORES JEWELLERY (P) LTD. VS. DCIT 31 SOT 32 3 WHICH THE CIT(A) FOLLOWED. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. 6. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH OF THE TRIBUNAL CITED SUPRA WE DISMISS THE APPEAL FILED B Y THE REVENUE SINCE THE TAX EFFECT INVOLVED IS LESS THAN ` 3 LACS. ITA 3952/M/10 OCTOPUS SYSTEMS P. LTD. 3 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON 20.7.2011. SD/- SD/- (D.K. AGARWAL) (R.K. PANDA) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI DATED 20.7.2011. RK COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT (A - 17) -MUMBAI 4. THE CIT -8 MUMBAI 5. THE DR C BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T MUMBAI ITA 3952/M/10 OCTOPUS SYSTEMS P. LTD. 4 DATE INITIALS 1 DRAFT DICTATED ON: 11.7.11 14.7.11 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 12. 7.11 14.7.11 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10. DATE OF DISPATCH OF ORDER: _________ ______