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Income Tax Appellate Tribunal, MUMBAI BENCHES “B”, MUMBAI
Before: SHRI B.R.BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
The present appeal 06/09/2013 passed by the Ld. CIT(A)-30, Mumbai for the Asst. year 2009-10.
CO No. 15/MUM/2015 Assessment Year: 2009-10 The assessee has also filed Cross Objection No. 15/Mum/2015. Since the said appeal and cross appeal pertain to the same assessee for the same assessment year, both were clubbed and heard together and are being disposed of by this common order for the sake of convenience.
The revenue has challenged the impugned order dated 06/09/2013 passed by the Ld. CIT(A) on the following effective grounds:-
“1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in directing the A.O. to take the peak credit and to calculate G.P.@ 12.6% as against total cash deposit in the undisclosed bank account without appreciating the fact that the assessee could not provide evidence in respect of cash deposit out of cash withdrawals.”
2. The appellant prays that the CIT(A) on the above ground be set aside and that of the AO be restored.”
3. At the outset, the Ld. Counsel for the assessee submitted that the tax effect in this case is below Rs.10,00,000/-. Hence, as per the CBDT Circular No. 21 of 2015, dated 10/12/2015, the present appeal is not maintainable.
The Ld. DR fairly admitted that the tax effect in department’s appeal is below Rs. 10 Lakhs, We find that the issue raised in appeal does not fall under any of the exceptions specified in para 8 of the Circular. Since, it has been specifically clarified in the Circular aforesaid that the instruction will apply retrospectively to all the pending appeals; the present appeal filed by the revenue is not maintainable. We, therefore, dismiss the same in limine.
CO No. 15/MUM/2015 Assessment Year: 2009-10 CO 15/Mum/2015.
The assessee has filed the present Cross Objection on the following grounds:- “1. The Learned Assessing Officer erred in stating that the “ on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in directing the AO to take the peak credit and to calculate G.P. @ 12.6% as against total cash deposit in the undisclosed bank account without appreciating the fact that the assessee could not provide evidence in respect of cash deposit out of cash withdrawals.”
2. The Learned CIT(A) erred in adding both the peak credit Rs. 1,63,312/- and the gross profit of Rs. 2,54,318/- on the same amount of Rs. 20,24,823/-.”
Since we have already dismissed the appeal filed by the revenue, the present cross objection of the assessee has become infructuous and the same is therefore dismissed.
In the result, the appeal filed by the department and Cross Objection filed by the assessee for the A.Y. 2009-10 are dismissed.
Order pronounced in the open court on 13th June, 2016