M/s Syndicate Marine Pvt. Ltd., Vasco V. The Asst. Comm. Of Income-Tax. Circle-2(1), Panaji., Panaji

CO 13/PAN/2015

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1071 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 24-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANAND S MARATHE LD
• Assessee Lawyers: VIPAN MALHOTRA DIRECTOR
• Keywords: Retrospective amendment; Tax effect
• Section: 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NOS. 8 & 9/PNJ/2015 : (A.YS 2004 - 05 & 2005 - 06) ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 2(1), PANAJI, GOA. (APPELLANT) VS. M/S. SYNDICATE MARINE PVT. LTD., B - 15, D.B. KOSSAMBE BUILDING, SWATANTRAPATH, VASCO - DA - GAMA, GOA (RESPONDENT) PAN : AACCS8758A CO NOS. 13 & 14/PNJ/2015 ( IN ITA NOS. 8 & 9/PNJ/2015) : (A.YS 2004 - 05 & 2005 - 06) M/S. SYNDICATE MARINE PVT. LTD., B - 15, D.B. KOSSAMBE BUILDING, SWATANTRAPATH, VASCO - DA - GAMA, GOA (CROSS OBJECTOR) PAN : AACCS8758A VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 2(1), PANAJI, GOA. (RESPONDENT) ASSESSEE BY : VIPAN MALHOTRA, DIRECTOR REVENUE BY : ANAND S. MARATHE, LD. DR DATE OF HEARING : 1 4 /07/2015 DATE OF PRONOUNCEMENT : 1 4 /07/2015 O R D E R PER BENCH : 1. ITA NO. 8 & 9 /PNJ/2015 ARE APPEAL S FILED BY THE REVENUE AGAINST THE ORDER S OF CIT(A), PANAJI IN ITA NO. 186/MRG/07 - 08 DT. 10.10.2014 FOR THE A.Y 2004 - 05 AND ITA NO. 252/MRG/07 - 08 DT. 10.10.2014 FOR THE A.Y 2005 - 06 RESPECTIVELY AND CO NO S . 13 & 14 /PNJ/2015 ARE CROSS OBJECTION S FILED BY THE 2 ITA NOS. 8&9/PNJ/2015 & CO NOS. 13&14/PNJ/2015 (A.YS 2004 - 05 & 2005 - 06) ASSESSEE IN THE REVENUES APPEAL S BEING ITA NO S . 8 & 9 /PNJ/2015. SHRI ANAND S. MARATHE, LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI VIPAN MALHOTRA, DIRECTOR OF THE ASSESSEE - COMPANY REPRESENTED ON BEHALF OF THE AS SESSEE. 2. DURING THE COURSE OF HEARING, LD. D.R. ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT TH E FACT THAT TAX EFFECT IN TH E ABOVE APPEAL S IS LESS THAN RS.4,00,000/ - . 3. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. D.R. AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSU E ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME - TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPT ER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), AN INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE 3 ITA NOS. 8&9/PNJ/2015 & CO NOS. 13&14/PNJ/2015 (A.YS 2004 - 05 & 2005 - 06) DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAV E REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS B EEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY.] 4. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 5. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS.4,00,000/ - FOR FILIN G THE APPEAL BEFORE THE TRIBUNAL. 6. KEEPING IN VIEW THE CBDT INSTRUCTION NO.5 OF 2014 DATED 10.07.2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL S BEFORE T HE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT : - 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 3. CIT V VARINDERA C ONSTRUCTION CO. (2011) 331 ITR 449 (P&H)(FB) 4 ITA NOS. 8&9/PNJ/2015 & CO NOS. 13&14/PNJ/2015 (A.YS 2004 - 05 & 2005 - 06) 7. SIMILARLY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER DATED 03.03.2011 BY FOLLOWING THE EARLIER ORDER DATED 02.08.2010 IN ITA NO.179/1991 IN THE CASE OF CIT DELHI - III V. M/S. P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 8. FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PE NDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO.3/11 DATED 09.02.2011 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID IN STRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4.00 LAKHS. 9. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS BOTH THE APPEALS FILED BY THE REVENUE. 10. AS WE HAVE ALREADY DISMISSED BOTH THE APPEALS FILED BY THE REVENUE, THE CROSS OBJECTIONS FILED BY THE ASSESSEE STAND ALLOWED AS THE ASSESSEE HAS RAISED THE ISSUE OF TAX EFFECT IN THE CROSS OBJECTION . ORDER PRONOUNCED IN THE OPEN COURT ON 14/07/2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 1 4 /07/ 201 5 *SSL* 5 ITA NOS. 8&9/PNJ/2015 & CO NOS. 13&14/PNJ/2015 (A.YS 2004 - 05 & 2005 - 06) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 6 ITA NOS. 8&9/PNJ/2015 & CO NOS. 13&14/PNJ/2015 (A.YS 2004 - 05 & 2005 - 06) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 1 4 /07/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 1 4 /07/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 1 5 /07/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 1 5 /07/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 1 5 /07/2015 SR.PS 6. DATE OF PRONOUNCEMENT 1 4 /07/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 1 5 /07/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER