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The Asst. Commissioner of Income Tax 3(3), Room No.668, 6th Floor, Aayakar Bhavan, M.K. Road, Mumbai 400 020 Vs. M/s. Wham Investments Pvt. Ltd., 78A & 78B Jolly Maker Chamber No.2, 7th Floor, Nariman Point, Mumbai 400021
March, 23rd 2015
                  MUMBAI BENCH "G", MUMBAI


                             MA No.07/M/2015
                    (Arising out of ITA No.2090/M/2012)
                          Assessment Year: 2007-08

        The Asst. Commissioner of     M/s. Wham Investments
        Income Tax ­ 3(3),            Pvt. Ltd.,
        Room No.668, 6 Floor,         78A & 78B Jolly Maker
        Aayakar Bhavan,               Chamber No.2,
        M.K. Road,                    7th Floor, Nariman Point,
        Mumbai ­ 400 020              Mumbai ­ 400021
                                      PAN: AAACW 0522F
             (Appellant)                       (Respondent)

      Assessee by             : Shri M. Subramaniam, A.R.
      Revenue by              : Shri Vivek A. Perampurna, D.R.

      Date of Hearing       : 20.03.2015
      Date of Pronouncement : 20.03.2015


Per Sanjay Garg, Judicial Member:

      The present miscellaneous application has been filed by the Revenue
under section 254 of the Act stating that there is an error on record has
occurred in the order dated 24.07.2014 of this Tribunal passed in ITA
No.2090/M/2012 in relation to A.Y. 2007-08.
                                       2                                     MA No.07/M/2015
                                                           (Arising out of ITA No.2090/M/2012
                                                              M/s. Wham Investments Pvt. Ltd.

2.      It has been stated that the appeal of the Revenue, vide order dated
24.07.2014, was dismissed on the ground that the tax effect in the appeal of the
Revenue was less than Rs.3 lakhs. In the application, it has been submitted
that the notional tax effect involved in this case is Rs.3,99,929/- and hence the
same was required to be heard on merits.
3.      The Ld. A.R., on the other hand, has submitted that in this case the
income of the assessee was assessed under section 115JB of the Act and the
tax effect in relation to section 115JB assessment was less than Rs.3 lakhs. He
has submitted that the theory of notional tax was not applicable to the case in

4.      We have considered the rival contentions of both the parties.
Admittedly, as stated in the application itself, even the notional tax effect in
this case has been calculated at Rs.3,99,929/- which amount is below the
prescribed limit of 4 lakhs for filing the appeal by the department before the
Tribunal by the Central Board of Direct Taxes (CBDT) vide Instruction No.5
dated 10.07.2014 . The Hon'ble Bombay High Court in the case of 'Madhukar
Inamdar' - 185 Taxmann. 101 has held that CBDT circular is applicable where
the appeals are pending and not only to the appeals which are to be filed after
the circular was issued. Similar view has been adopted by the co- ordinate
benches of this tribunal in the case of 'ITO vs. Surendermal R. Lodha' in ITA
No.1628/Mum/11 for the Assessment Year 2004-05 decided on 25.08.14 and
further in the case of 'ITO vs. Shri Kuldeep Ganesh Hake' in ITA
No.4284/M/2013 for the Assessment Year 2008-09 decided on 17.09.2014. In
view of the aforementioned Instructions of the CBDT and the above judicial
decisions on the issue, the appeal of the Revenue is still not maintainable in
view of fact that the tax effect less than Rs.4 lakhs. Thus, we do not find any
                                      3                                   MA No.07/M/2015
                                                        (Arising out of ITA No.2090/M/2012
                                                           M/s. Wham Investments Pvt. Ltd.

reason to recall the order dated 24.07.2014. Accordingly, the application of
the Revenue is hereby dismissed.

Order pronounced in the open court on 20.03.2015.

         Sd/-                                         Sd/-
    (R.C. Sharma)                                 (Sanjay Garg)
ACCOUNTANT MEMBER                              JUDICIAL MEMBER

Mumbai, Dated: 20.03.2015.

* Kishore, Sr. P.S.

Copy to: The Appellant
        The Respondent
        The CIT, Concerned, Mumbai
        The CIT (A) Concerned, Mumbai
        The DR Concerned Bench

//True Copy//

                                                By Order

                                   Dy/Asstt. Registrar, ITAT, Mumbai.
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