Shri Narayan G. Vinchurkar, Nashik V. ACIT, Cir.-2, Nashik

CO 24/PUN/2010

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6009 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 16-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S C SHIVGANDE
• Keywords: Question of law; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI G.S. PANNU, AM. I.T.A. NO. 467/PN/2009 : A.Y. 2005-06 ASSTT. CIT CIR. 2, NASIK .. APPELLANT VS. SHRI VINCHURKAR NARAYAN G. VINCHURKAR BUNGALOW OPP. HOTEL SAMRAT, AGRA ROAD, NASIK PAN AKPV 1151 D .. RESPONDENT C.O. NO. 24/PN/2010 ARISING OUT OF I.T.A. NO. 467/PN/2009 : A.Y. 2005- 06 SHRI VINCHURKAR NARAYAN G. VINCHURKAR BUNGALOW OPP. HOTEL SAMRAT, AGRA ROAD, NASIK PAN AKPV 1151 D CROSS OBJECTOR VS. ASSTT. CIT CIR. 2, NASIK APPELLANT IN APPEAL DEPARTMENT BY: SHRI S.C. SHIVGANDE ASSESSEE BY: SHRI NIKHIL PATHAK ORDER PER SHAILNDRA KUMAR YADAV, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-I NASIK DATED 30-1-2009 WHICH, IN TUR N, HAS ARISEN FROM ORDER OF THE ASSESSING OFFICER DATED 19 .12.2007 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR S 2005-06. THE ASSESSEE HAS FILED A CROSS OBJECTION IN SUPPORT OF THE ORDER OF THE CIT(A). ITA NO. 467/PN/2009 AND C.O NO. 24/PN/10 VINCHURKAR N.G A.Y. 2005-06 2 2. AT THE TIME OF HEARING, THE LEARNED REPRESENTATI VE FOR THE RESPONDENT-ASSESSEE RAISED A PRELIMINARY OBJECTION BY POINTING OUT INSTRUCTION NO. 3/2011 DATED 09.02.2011 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) FIXING THE MON ETARY LIMITS FOR FILING OF DEPARTMENTAL APPEALS BEFORE TH E TRIBUNAL. IN TERMS OF THE SAID INSTRUCTION, MONETARY LIMIT FOR F ILING DEPARTMENTAL APPEAL TO THE TRIBUNAL HAS BEEN FIXED AT RS 3 LAKHS. IN OTHER WORDS, IN CASES WHERE THE TAX EFFEC T OF THE ADDITIONS DELETED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IS LESS THAN RS 3 LAKHS, NO APPEAL SHALL BE FILED B Y THE DEPARTMENT IN SUCH CASES. ACCORDING TO THE LEARNED REPRESENTATIVE, THE TAX EFFECT WITH RESPECT TO THE RELIEF ALLOWED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IN THE CAPTIONED APPEAL IS BELOW RS 3 LAKHS. SUCH FACTUAL MATRIX HAS NOT BEEN CONTESTED BY THE LEARNED DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE. 3. THE LEARNED REPRESENTATIVE FOR THE RESPONDENT-AS SESSEE FURTHER RELIED UPON A RECENT DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ITO V SHRI ASHOK G. DHA NDHARIAI, MUMBAI IN ITA NO2460/MUM/2010 DATED 28.2.2011 TO CANVASS THAT THE REVISED INSTRUCTIONS DATED 9.2.201 1 (SUPRA) ARE APPLICABLE TO THE PRESENT CASE ALSO, ALTHOUGH S UCH APPEAL HAVE BEEN FILED ON A PRIOR DATE. IN VIEW OF THE PRE CEDENT BROUGHT OUT BY THE LEARNED REPRESENTATIVE FOR THE R ESPONDENT, FACTUALLY THE CAPTIONED DEPARTMENTAL APPEAL IS LIAB LE TO BE CONSIDERED TO HAVE BEEN FILED CONTRARY TO THE CBDT INSTRUCTIONS DATED 9.2.2011 (SUPRA). THE TRIBUNAL F OLLOWING THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN TH E CASE OF CIT V MADHUKAR K. INAMDAR (HUF) 318 ITR 149 AND CIT V PITHWA ENGINEERING WORKS 276 ITR 519 (BOM) FOUND IT ITA NO. 467/PN/2009 AND C.O NO. 24/PN/10 VINCHURKAR N.G A.Y. 2005-06 3 APPROPRIATE TO DISMISS THE DEPARTMENTAL APPEAL ON T HE GROUND THAT TAX EFFECT IS LESS THAN RS 3 LAKHS, EVEN IN A CASE WHERE THE DEPARTMENTAL APPEAL WAS FILED PRIOR TO THE DATE OF THE CBDT INSTRUCTION DATED 9.2.2011 (SUPRA). THE FOLLOWING D ISCUSSION IN THE ORDER IS WORTHY OF NOTICE: 5. WE HEARD BOTH THE PARTIES. THE CASE OF CIT VS. CHHAJER PACKAGING & PLASTICS PVT. LTD. 300 ITR RELI ED ON BY THE DR IS DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE. AT PARA 12 PAGE 184 OF THE DECISION IN THE CA SE OF CHHAJER PACKAGING & PLASTICS PVT. LTD. IT HAS BEEN HELD AS FOLLOWS: OTHERWISE ALSO, PARAGRAPH OF THIS CIRCULAR ITSELF SAVES CERTAIN APPEALS FROM BEING OBSTRUCTED DUE TO FINANCIAL LIMITS. PARAGRAPH 3 READS: THE BOARD HAS ALSO DECIDED THAT IN CASES INVOLVING SUBSTANTIAL QUESTION OF LAW OF IMPORTANCE AS WELL AS IN CASES WHERE THE SAME QUESTION OF LAW WILL REPEATEDLY ARISE, EITHER IN THE CASE CONCERNED OR IN SIMILAR CASES, SHOULD BE SEPARATELY CONSIDERED ON THE MERITS WITHOUT BEING HINDERED BY THE MONETARY LIMITS. IT IS EVIDENT THAT, WHENEVER THERE IS A SUBSTANTIAL QUESTION OF LAW, OR QUESTION OF LAW WHICH IS LIKELY TO RECUR IN FUTURE, THE DEPARTMENT IS NOT PROHIBITED FROM FILING AND PURSUING APPEALS. WE BELIEVE THAT THE SAVING CLAUSE SAVES THE PRESENT APPEAL SINCE IT INVOLVES A QUESTION OF LAW REGARDING INTERPRETATION OF SECTION 275(1)(C) OF THE ACT, AND MORE PARTICULA RLY THE ASPECT OF MANNER IN WHICH THE LIMITATION SHOULD BE COMPUTED IN THE LIGHT OF THE SAID PROVISIONS. WE HAVE, THEREFORE, PROCEEDED TO HEAR THE ADVOCATES ON THE MERITS. IN OUR OPINION, THE CASE OF CIT V CHHAJER WAS WITH RESPECT OF INTERPRETATION OF 275(1)(C) OF THE ACT A ND HENCE CAME UNDER THE EXCEPTION CLAUSE UNDER THE CBDT CIRCULAR AND WAS NOT OBSTRUCTED BY THE MONETARY LIMIT OF RS 3 LAKHS PRESCRIBED BY THE CIRCULAR. THEREFORE THE CASE OF 300 ITR 180 IS INAPPLICABLE TO THE FACTS OF OUR CASE. FURTHER INSTRUCTION NO. 5 DT. 15.5.2008 FIXING THE MONETARY LIMIT AT RS 2 LAKHS IS SIMILAR TO THAT OF INSTRUCTI ON NO. 3 DATED 9.2.2011 WHICH THE ASSESSEE HAS BROUGHT TO OUR NOTICE IN SUPPORT OF HIS CONTENTION. SINCE BOTH THE INSTRUCTION NOS. 5 & 3 ARE IDENTICAL , THE RATIO OF THE DECISION IN THE CASE OF CIT V PITH WA ITA NO. 467/PN/2009 AND C.O NO. 24/PN/10 VINCHURKAR N.G A.Y. 2005-06 4 ENGG. WORK WHICH DEALS WITH INSTRUCTION NO. 5 DT. 15.5.2008 SHALL EQUALLY APPLY TO THE PRESENT CASE WHICH FALLS UNDER LNSTRUCTION NO. 3 DATED 9.2.2011. FOLLOWING THE RATIO OF THE DECISION IN THE CASE OF CIT V PITHWA ENGG. WORK WHEREIN IT HAS BEEN HELD THAT IN OUR VIEW, THE BOARDS CIRCULAR DT. 27 TH MARCH, 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED, WE DISMISS THE DEPARTMENTAL APPEAL ON THE GROUND THAT THE TAX EFFECT IS LESS THAN 3 LAKHS. 4. FOLLOWING THE AFORESAID PRECEDENT, THE CAPTIONED APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED IN V IEW OF CBDT INSTRUCTION NO. 3 DATED 9.2.2011 (SUPRA) AS THE TAX EFFECT WITH RESPECT TO THE QUANTUM OF RELIEF ALLOWED BY THE COM MISSIONER OF INCOME-TAX (APPEALS) IS BELOW RS 3 LAKHS AND IT HAS NOT BEEN SHOWN THAT THE APPEAL FALL UNDER ANY OF THE EX CEPTIONS PROVIDED IN PARA 8 OF THE CBDT INSTRUCTION (SUPRA). WE ORDER ACCORDINGLY. AS FAR AS CROSS OBJECTION FILED BY THE ASSESSEE IS CONCERNED, THE LEARNED COUNSEL FOR THE ASSESSEE SOU GHT PERMISSION OF THIS BENCH OF THE TRIBUNAL TO WITHDRA W THE SAME. WE ACCORDINGLY DISMISS THE CROSS OBJECTION A S WITHDRAWN. 5. IN THE RESULT, THE APPEAL OF THE REVENUE AND CRO SS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF MAY 2011. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE: DATED: 13 TH MAY, 2011 ANKAM ITA NO. 467/PN/2009 AND C.O NO. 24/PN/10 VINCHURKAR N.G A.Y. 2005-06 5 COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A) I NASIK 4. THE CIT, I NASIK 5. THE D.R, B BENCH, PUNE TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE