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Income Tax Appellate Tribunal, “D” Bench, Mumbai
O R D E R Per Shamim Yahya (AM) :-
This appeal by the revenue is directed against order of learned Commissioner of Income Tax (Appeals) [in short learned CIT(A)] dated 26.3.2018 and pertains to assessment year 2011-12.
The grounds of appeal
read as under :- 1. "Whether in the facts and the circumstances of the case and in law, the Ld. CIT(A) is justified in deleting the disallowance of Rs. 79,03,848/-on account of depreciation on Kandivali Factory premises when the said premises along with all its fixtures is being used by agencies to whom job work is outsourced by the assessee?
2. "Whether in the facts and the circumstances of the case and in law, the Ld. CIT(A) is justified treating receipts from job contractors amounting to Rs. 24,000/- as business income instead of income from House Property considering the said premises at Kandivali along with all its fixtures have been leased to the outsourcing agents (job contractors)?
3. "Whether in the facts and the circumstances of the case and in law, the Ld. CIT(A) has erred in restricting the disallowance u/s 14A r.w. Rule 8D(2)(iii) made by the Assessing Officer to Rs. 13,52,346/- without appreciating the fact that the disallowance u/s 14A of the Act has been carried out as per the formula laid down in Rule 8D of the Income tax Rules
2 M/s. Rosy Blue (India) Pvt. Ltd. and by following the CBDT Circular No. 5/2014 dated 11/02/2014 wherein it had been held that disallowance u/s 14A r.w.r 8D can be even made when the assessee had not earned any exempt income during the year."
4. "Whether in the facts and the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the disallowance u/s 14A r.w.Rule 8D(2)(ii) of Rs. 30,26,665/- made by the Assessing Officer by relying on decision of the Hon'ble Bombay High Court in the case of Reliance Utilities & Power Ltd (313 ITR 340) without appreciating the fact that the said ratio is laid down prior to the introduction of Rule 8D for completion of disallowance and hence no presumption with regards to the same remains?" 5. "Whether in the facts and the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the disallowance of Rs. 1,54,424/- on account of bogus purchases and restricting the disallowance to 5% ignoring the decision of the Hon'ble Gujarat High Court in the case of N.K. Proteins Ltd. Vs. DCIT in which upto 100% of bogus purchases were disallowed and in which SLP of the assessee is dismissed?"
The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored.”
At the outset it is noted that that the tax effect in this case is below the limit of Rs. 50,00,000/- fixed by CBDT vide Circular No. 17/2019 dated 8/8 2019 for filing appeal before the ITAT. Hence this appeal by the revenue is not maintainable.
Learned Departmental Representative could not dispute that the tax effect is below the said limit. He could not point out that the appeal falls in any of the exceptions carved in said circular.
Upon careful consideration we find that as the tax effect is below the limit fixed by CBDT for filing appeals before the ITAT, this appeal by the revenue is liable to be dismissed in limine. The revenue will have liberty to seek restoration of the appeal if the tax effect is found to be beyond the above limit.
3 M/s. Rosy Blue (India) Pvt. Ltd.
Accordingly the appeal stands dismissed as such.
Pronounced in the open court on 2.3.2021.