Income Tax Appellate Tribunal - Mumbai
Deputy Commissioner Of Income Tax ... vs Acme Housing India Private Limited , ... on 26 July, 2018
P a g e |1
M.A. No. 879/Mum/2017 A.Y. 2011-12 (Arising out of ITA No. 5024/Mum/2015)
Dy. Commissioner of Income Tax-CC-2(3) Vs. M/s Acme Housing India Private Ltd
IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH, MUMBAI
BEFORE SHRI G.S.PANNU, AM AND SHRI RAVISH SOOD, JM
M.A. No. 879/Mum/2017
(Arising out of ITA No. 5024/Mum/2015)
(निर्धारण वषा / Assessment Year:2011 -12)
Dy. Commissioner of Income M/s Acme Housing India Private
Tax-CC-2(3) Ltd, Gr. Floor, Acme Ghar,
Room No. 803, 8th Floor, बिधम/ 19 K.D. Road, Vile Parle (W),
Pratistha Bhawan, Old CGO, Mumbai- 400021
Vs.
Annexe Building, M.K. Road,
Marine Lines,
Mumbai- 400020
स्थामी रेखा सं ./ जीआइआय सं ./ PAN No. AADCA0705E
(अऩीराथी /Revenue) : (प्रत्मथी / Assessee)
अऩीराथी की ओय से / Revenue by : Shri Virender Singh, D.R
प्रत्मथी की ओय से/Assessee by : Shri Jitendra Jain, A.R
सुनवाई की तायीख / : 04.05.2018
Date of Hearing
घोषणा की तायीख / : 26.07.2018
Date of Pronouncement
आदे श / O R D E R
PER RAVISH SOOD, JUDICIAL MEMBER:
Order U/s 254(2) The present miscellaneous application filed by the revenue under Sec.254(2) of the Income Tax Act, 1961 (for short 'Act') arises from the order passed by the Tribunal under Sec.254(1) of the Act in ITA No. 5024/Mum/2015, dated 07.07.2017.
P a g e |2 M.A. No. 879/Mum/2017 A.Y. 2011-12 (Arising out of ITA No. 5024/Mum/2015) Dy. Commissioner of Income Tax-CC-2(3) Vs. M/s Acme Housing India Private Ltd
2. The ld. Departmental Representative (for short 'D.R') at the very outset of the hearing of the application submitted that the appeal of the revenue was dismissed by the Tribunal on the ground that the tax effect involved in the appeal was less than the monetary limit of Rs.10 lac as specified in the CBDT Circular No. 21/2015, dated 10.12.2015. It was averred by the ld. D.R that though the CBDT Circular No. 21/2015, dated 10.12.2015 provided that the same would also be applicable retrospectively to the pending appeals, however, the same is not found to be in conformity with the judgment of the Hon'ble Supreme Court in the case of CIT, Bangalore-1 Vs. M/s Gemini Distilleries [Civil Appeal No. 16815/2017 (SLP (C) No. 1425/2014, dated 12.10.2017)]. It was submitted by the ld. D.R that the Hon'ble Apex court in the case of M/s Gemini Distilleries (supra) had held that the CBDT cannot issue any circular having retrospective operation. In the backdrop of the aforesaid contention, it was the claim of the ld. D.R that as in the present case the appeal was filed by the revenue on 09.10.2015, therefore, the monetary ceiling contemplated in the CBDT Circular No. 21/2015, dated 10.12.2015, in the absence of its retrospective application would not cover the present appeal. On the basis of the aforesaid facts it was submitted by the ld. D.R that the order passed by the Tribunal dismissing the appeal of the revenue may be recalled and disposed off on merits. Per contra, the ld. Authorized Representative (for short 'A.R') submitted that no infirmity did emerge from the order of the Tribunal dismissing the appeal of the revenue on account of low tax effect. It was submitted by the ld. A.R that the Hon'ble Supreme Court in its subsequent judgment in the case of Director of Income Tax Vs. S.R.M.B. Dairy Forming Pvt. Ltd. (2018) 400 ITR 9 (SC) has held that beneficial circulars are to be applied retrospectively, while oppressive circulars have to be given a prospective effect. It was submitted by the ld. A.R that the application filed by the revenue being devoid of any force was thus liable to be dismissed.
3. We have heard the authorized representatives for both the parties. We find that the Hon'ble Supreme Court in the case of CIT, Bangalore-1 & Anr. Vs. Gemini Distilleries [Civil Appeal No. 16815/2017 (SLP (C) No. P a g e |3 M.A. No. 879/Mum/2017 A.Y. 2011-12 (Arising out of ITA No. 5024/Mum/2015) Dy. Commissioner of Income Tax-CC-2(3) Vs. M/s Acme Housing India Private Ltd 1425/2014, dated 12.10.2017)] had in context of the retrospective applicability of the CBDT Instruction/Circular, dated 09.02.2011, had opined that the CBDT cannot issue any circular having retrospective operation. However, we find that the Hon'ble Supreme Court in its subsequent judgments in the case of Director of Income Tax Vs. S.R.M.B Dairy Farming Pvt. Ltd. (2018) 400 ITR 9 (SC), by relying on an earlier three judge bench order of the court in the case of CIT Central-III Vs. Surya Herbal Ltd. [SLP (C) No. CC. 13694/2011, dated 29.08.2011] had observed that the retrospective applicability of the circular dated 09.02.2011 was not to be interfered with, but with two caveats viz. (i) Circular should not be applied by the High Courts ipso facto when the matter had a cascading effect; (ii) where common principles may be involved in subsequent group of matters or a large number of matters. We find that the Hon'ble Apex Court in its order passed in the case of S.R.M.B Dairy Farming Pvt. Ltd. (supra), had observed that as the matter as regards the retrospective applicability of the circulars had been clearly put to rest by the three judges bench of the Court in the case of Surya Herbal Ltd. (supra), thus the same would hold the ground and the circulars would apply even to the pending matters.
4. We have given a thoughtful consideration to the miscellaneous application filed by the revenue and in the backdrop of our aforesaid observations, are unable to persuade ourselves to subscribe to the claim of the revenue that the Tribunal had erred in dismissing its appeal on the ground of low tax effect. We are of the considered view that as held by the Hon'ble Apex Court in the case of Director of Income tax Vs. S.R.M.B Dairy Farming Pvt. Ltd. (2018) 400 ITR 9 (SC), the matter as regards the retrospective applicability of the Circulars issued by CBDT had been put to rest by the three judges bench decision of the Hon'ble Supreme Court in the case of CIT Central-III Vs. Surya Herbal Ltd [SLP (C) No. CC 13694/2011, dated 29.08.2011]. We find that as observed by us hereinabove, the Hon'ble Apex Court in the case of Surya Herbal Ltd (supra) had concluded that the retrospective applicability of the CBDT Circular dated 09.02.2011 was not to be interfered with, but with two caveats, viz. (i) Circular should not be P a g e |4 M.A. No. 879/Mum/2017 A.Y. 2011-12 (Arising out of ITA No. 5024/Mum/2015) Dy. Commissioner of Income Tax-CC-2(3) Vs. M/s Acme Housing India Private Ltd applied by the High Court ipso facto when the matter had a cascading effect; and (ii) where common principles may be involved in subsequent group of matters or a large number of matters. We are of the considered view that in the backdrop of the aforesaid settled position of law, no mistake does emerge from the order passed by the Tribunal dismissing the appeal filed by the revenue on account of low tax effect as contemplated in the CBDT Circular No. 21/2015, dated 10.12.2015. We thus, in terms of our aforesaid observations dismiss the miscellaneous application filed by the revenue.
5. The miscellaneous application filed by the revenue is dismissed.
Order pronounced on 26.07.2018
Sd/- Sd/-
(G.S. Pannu) (Ravish Sood)
ACCOUNTANT MEMBER JUDICIAL MEMBER
भंफ
ु ई Mumbai; ददनांक 26.07.2018
Ps. Rohit
आदे श की प्रनिलऱपि अग्रेपषि/Copy of the Order forwarded to :
1. अऩीराथी / The Appellant
2. प्रत्मथी / The Respondent.
3. आमकय आमक् ु त(अऩीर) / The CIT(A)-
4. आमकय आमुक्त / CIT
5. ववबागीम प्रतततनधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai
6. गार्ड पाईर / Guard file.
सत्मावऩत प्रतत //True Copy// आदे शधिुसधर/ BY ORDER, उि/सहधयक िंजीकधर (Dy./Asstt. Registrar) आयकर अिीऱीय अधर्करण, भंफ ु ई / ITAT, Mumbai P a g e |5 M.A. No. 879/Mum/2017 A.Y. 2011-12 (Arising out of ITA No. 5024/Mum/2015) Dy. Commissioner of Income Tax-CC-2(3) Vs. M/s Acme Housing India Private Ltd