ACIT (OSD) 2(1), MUMBAI v. BDP (INDIA) P. LTD, MUMBAI

ITA 4308/MUM/2010 | 2003-2004
Pronouncement Date: 20-07-2011 | Result: Dismissed

Appeal Details

RSA Number 430819914 RSA 2010
Assessee PAN AABCB5917D
Bench Mumbai
Appeal Number ITA 4308/MUM/2010
Duration Of Justice 1 year(s) 1 month(s) 25 day(s)
Appellant ACIT (OSD) 2(1), MUMBAI
Respondent BDP (INDIA) P. LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 20-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 20-07-2011
Assessment Year 2003-2004
Appeal Filed On 26-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI P.M. JAGTAP (AM) & SHRI VIJAY PAL RAO (JM) I.T.A.NO.4308/MUM/2010 (A.Y. 2003-04) ASSTT. COMMR. OF INCOME-TAX (OSD)- 2(1) AAYKAR BHAVAN R.NO. 561 5 TH FLOOR M.K. ROAD MUMBAI-400 020. VS. M/S. BDP (INDIA) PVT. LTD. 407 BNG HOUSE 201 D.N.ROAD NEAR CENTRAL CINEMA MUMBAI-400 001. PAN: AABCB5917D APPELLANT RESPONDENT APPELLANT BY SHRI JITENDRA YADAV. RESPONDENT BY NONE. O R D E R PER VIJAY PAL RAO JM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 29-03-2010 OF THE CIT(A) FOR THE ASSTT. YEAR 2003-04. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE CIT(A) HAS ERRED IN HOLDING THAT REOPENING OF ASSESSMENT WAS NOT VALID DUE TO CHANGE OF OPINION W ITHOUT APPRECIATING THE FACT THAT THE AMOUNT OF RS.3.42 LA KHS CLAIMED AS DEFERRED REVENUE EXPENDITURE WAS IN FACT CAPITAL EXPENDITURE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3.42 LAKHS CLAIMED AS DEFERRED REVENUE EXPENDITURE WHICH WAS IN FACT CAPITAL EXPENDITURE. 3. WE HAVE HEARD THE LD. D.R. AND CONSIDERED THE RE LEVANT RECORD. SINCE NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE AT TH E TIME OF HEARING AND IN THIS ITA NO. 4308/M/2010 BDP (INDIA) P.LTD. 2 CASE THE TAX EFFECT APPEARS TO BE LESS THAN THE LIM IT PRESCRIBED UNDER THE CBDT INSTRUCTION NO.3 DATED 09-02-2001 WE PROCEED TO DI SPOSE OF THE APPEAL EX PARTE. 4. AT THE OUTSET WE NOTE THAT THE REVENUE HAS CHA LLENGED THE DELETION OF AN ADDITION OF RS.3 42 000/- IN THIS APPEAL WHICH CLEA RLY SHOWS THAT THE TAX EFFECT IN THE REVENUES APPEAL IS LESS THAN RS.2 LAKHS. SINCE THE MONETARY LIMIT IN THIS IMPUGNED APPEAL IS LESS THAN RS.2 LAKHS THE APPEAL FILED BY THE DEPARTMENT HAS TO BE DISMISSED. 5. WE FIND THAT THE CO-ORDINATE BENCH OF THE TRIBUN AL IN THE CASE OF LAXMI JEWEL PVT. LTD. IN ITA NO.2165/M/2010 FOR A.Y. 2004 -05 HAS HELD AS UNDER : WE HAVE CONSIDERED THE ISSUE. THERE IS NO DOUBT TH AT THE TAX EFFECT IN THIS CASE IS ONLY RS.2 07 512/-. AS PER I NSTRUCTION NO. 3 OF 2011 DT. 9.2.2011 APPEAL BEFORE APPELLATE TRIB UNAL CAN BE FILED WHERE THE TAX EFFECT EXCEEDS THE MONETARY LIMIT OF RS.3 00 000/-. HOWEVER CONSIDERING THE SIMILAR SIT UATION WHERE TAX LIMITS WERE MODIFIED BY THE CBDT INSTRUCT ION NO. 5 OF 2008 THE HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT VS. MADHUKAR K. INAMDAR (HUF) (SUPRA) HELD THAT THE CIRCULAR WILL BE APPLICABLE ;TO THE CASES PENDING B EFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL. I N VIEW OF THE ORDER OF THE JURISDICTIONAL HIGH COURT WE HOLD THAT INSTRUCTION NO.3 DT. 9.2.2011 IS APPLICABLE FOR THE APPEAL PREF ERRED BY THE REVENUE. THEREFORE THE APPEAL IS DISMISSED ON THE ISSUE OF TAX EFFECT INVOLVED. EVEN OTHERWISE THERE IS NO CAS E FOR THE REVENUE ON MERITS AS THE ISSUE WAS HELD IN AGAINST THE REVENUE BY THE ITAT ORDER IN THE CASE OF LIVING STO RES JEWELLERY (P) LTD. VS. DCIT 31 SOT 323 WHICH THE C IT(A) FOLLOWED. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED . 6. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-OR DINATE BENCH OF THE TRIBUNAL CITED SUPRA WE DISMISS THE APPEAL FILED BY THE REV ENUE SINCE THE TAX EFFECT INVOLVED IS LESS THAN RS.2 LAKHS. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ITA NO. 4308/M/2010 BDP (INDIA) P.LTD. 3 ORDER PRONOUNCED ON THE 20TH DAY OF JULY 2011. SD/- SD/- (P.M. JAGTAP) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 20TH JULY 2011. NG: COPY TO : 1. DEPARTMENT. 2.ASSESSEE. 3 CIT(A)-4 MUMBAI. 4 CIT-2 MUMBAI. 5.DR H BENCH MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER ASST.REGISTRAR ITAT MUMBAI. DETAILS DATE INITIALS DESIGNA TION 1. DRAFT DICTATED ON 18-07-2011 SR.PS/ 2. DRAFT PLACED BEFORE AUTHOR 18-07-2011 SR.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/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER