M/s. Ganapati Foundation Trust, Cuttack V. ITO, Exemptions Ward, Cuttack

CO 49/CTK/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7615 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 28-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K GOUTAM
• Assessee Lawyers: NATBAR
• Keywords: Audit objection; Tax effect
• Section: 201; 268A; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM . / ITA NO. 288 /CTK/201 8 ( / ASSESSMENT YEAR :20 13 - 20 14 ) ITO, EXEMPTION WARD, CUTTACK VS. M/S G ANAPATI FOUNDATION TRUST, AT: GOPINATHPUR, PO: BHAIRPUR, JAGATPUR, CUTTACK - 754021 ./ PAN NO. : A A BTG 2055 N ( / APPELLANT ) .. ( / RESPONDENT ) AND CROSS OBJECTION NO. 49 /CTK/201 8 (ARISING OUT OF ITA NO. 288 /CTK/2018) ( / ASSESSMENT YEAR : 201 3 - 201 4 ) M/S G ANAPATI FOUNDATION TRUST, AT: GOPINATHPUR, PO: BHAIRPUR, JAGATPUR, CUTTACK - 754021 VS. ITO, EXEMPTION WARD, CUTTACK ./ PANNO. : A A BTG 2055 N /REVENUE BY : SHRI M.K.GOUTAM, CIT - DR /AS SESSEE BY : SHRI NATBAR PANDA, ADV OCATE / DATE OF HEARING : 2 2 / 01 /20 20 / DATE OF PRONOUNCEMENT : 29 / 01 /20 20 / O R D E R PER L.P.SAHU, AM THE REVENUE HAS FILED THIS APPEAL AGAINST THE OR DER OF CIT(A), CUTTACK, DATED 22.03.2018 FOR ASSESSMENT YEAR 201 3 - 201 4 AND THE ASSESSEE HAS FILED CROSS OBJECTION. 2. A T THE OUTSET, LD. AR SUBMITTED THAT THE TAX EFFECT IN THE PRESENT APPEALS OF THE REVENUE IS LESS THAN RS.50 LAKHS AND, THEREFORE, IN VIEW OF CBDT CIRCULAR NO.17/2019 DATED 8 TH AUGUST, 2019, THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. ITA NO. 288 /CTK/201 8 CO NO. 49/CTK/2018 2 3 . LD. DR , DURING THE COURSE OF HEARING SUBMITTED THAT THOUGH IN THE APPEAL THE GROUND HAS BEEN TAKEN THAT C IT(A) HAS VIOLATED THE PROVISIONS OF RULE 46A OF I.T.RULES, 196 2 , HOWEVER, HE FAIRLY CONCEDED THAT THERE IS NO NON - COMPLIANCE OF RULE 46A OF I.T.RULES , 1962 . 4. FURTHER, THE LD. DR B EFORE US ALSO CONCEDED THAT NO DOUBT THE TAX EFFECT INVOLVED IN THE APPEAL IS LESS THAN RS.50 LAKHS, THUS, BOUND BY THE DEPARTMENTAL INSTRUCTION , HOWEVER, LD. DR DREW OUR ATTENTION TO PARA 10 OF THE CIRCULAR NO.3/2018, DATED 11 TH JULY, 2018, WHICH HAS BEEN MODI FIED BY CIRCULAR DATED 20 TH AUGUST, 2018 AND IN TERMS OF SAID MODIFICATION, THE DEPARTMENTAL REPRESENTATIVES MADE A PRAYER THAT PERMISSION TO PRAY FOR RECALL OF THE ORDER MAY BE GRANTED IN CASE ANY OF THE CONDITIONS IN THE REPORTS MADE AVAILABLE BY THE AO SUBSEQUENTLY SHOW THAT THE ISSUES WERE REQUIRED TO BE CONTESTED. THE MODIFIED PARA IS EXTRACTED HEREUNDER: 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE M ONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHERE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGA L OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN INCOME/UNDISCLOSED FOREIGN ASSETS (INCLUDING FINANCIAL ASSETS)/ UNDISCLOSED FOREIGN BANK ACCOUNT. (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/ DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). (F) CASES WHERE PROSECUTION HAS BEEN FILED BY THE DEPARTMENT AND IS PENDING IN THE COURT. 5 . EARLIER IN CIRCULAR NO.3/2018, DATED 11 TH JULY, 2018, IT HAS BEEN DECIDED BY THE CBDT THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND ITA NO. 288 /CTK/201 8 CO NO. 49/CTK/2018 3 SLPS/APPEALS BEFORE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. HENCEFORTH, APPEALS/SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S. NO . APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT ( RS.) 1. BEFORE APPELLATE TRIBUNAL 20,00,000 2. BEFORE HIGH COURT 50,00,000 3. BEFORE SUPREME COURT 1,00,00,000 6 . FURTHER, THE CBDT AMENDED THE ABOVE CIRCULAR VIDE CIRCULAR NO.17/2019, DATED 8 TH AUGUST , 2019, WHEREBY ENHANCING THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE THE INCOME TAX APPELLATE TRIBUNALS, HIGH COURTS AND SLPS/APPEALS BEFORE THE SUPREME COURT AS UNDER : - S. NO . APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (RS.) 1. BEFORE APPELLATE TRIBUNAL 50,00,000 2. BE FORE HIGH COURT 1,00,00,000 3. BEFORE SUPREME COURT 2,00,00,000 7 . GOING BY THE PRESCRIPTION OF AMENDED CIRCULAR NO. 17/2019, DATED 8 TH AUGUST, 2019, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HAVE EITHER NOT FILED THE INSTANT APPEAL BEFORE THE TRIBUNA L OR WITHDRAWN THE SAME AS THE TAX EFFECT IN THE APPEAL IS ADMITTEDLY LESS THAN THE PRESCRIBED LIMIT, I.E., RS. 50,00,000/ - FOR NOT FILING THE APPEAL, WHICH IS NOT MAINTAINABLE AS PER THE PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, 1961. 8 . THE COOR DINATE BENCH OF THE TRIBUNAL IN ITA NO.1398/AHD/2004, ORDER DATED 14.08.2009 HAS DISMISSED THE APPEALS FILED BY THE REVENUE BELOW THE MONETARY LIMIT OF RS.50,00,000/ - AS PRESCRIBED BY THE CBDT ITA NO. 288 /CTK/201 8 CO NO. 49/CTK/2018 4 VIDE CIRCULAR NO.17/2019, DATED 8 TH AUGUST, 2019. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL ARE AS UNDER : - 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND HAVING PERUSED THE MATERIAL ON RECORD, WE DO NOT HAVE SLIGHTEST OF HESITATION IN HOLDING THAT THE CONCESSION EXTENDED BY THE CBDT NOT ONLY APPLIES TO THE APPEALS TO BE FILED IN FUTURE BUT IT IS ALSO EQUALLY APPLICABLE TO THE APPEALS PENDING FOR DISPOSAL AS ON NOW. OUR LINE OF REASONING IS THIS. THE CIRCULAR DATED 8 TH AUGUST 2019 IS NOT A STANDALONE CIRCULAR. IT IS TO BE READ IN CONJUNCTION WITH TH E CBDT CIRCULAR NO 3 OF 2018 (AND SUBSEQUENT AMENDMENT THERETO), AND ALL IT DOES IS TO REPLACE PARAGRAPH NOS. 3 AND 5 OF THE SAID CIRCULAR. THIS IS EVIDENT FROM THE FOLLOWING EXTRACTS FROM THE CIRCULAR DATED 8 TH AUGUST 2019: 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATION. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME - TAX CASES BE ENHANCED FURTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY. THE TABLE FOR MONETARY LIMITS SP ECIFIED IN PARA 3 OF THE CIRCULAR SHALL READ AS FOLLOWS: S.NO . APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (RS.) 1. BEFORE APPELLATE TRIBUNAL 50,00,000 2. BEFORE HIGH COURT 1,00,00,000 3. BEFORE SUPREME COURT 2,00,00,000 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FILING OF APPEALS IN SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGHER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS - A - VIS WHERE COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUB STITUTED BY THE FOLLOWING PARA: 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN M ORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTEDISSUES EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. FURTHER, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT ITA NO. 288 /CTK/201 8 CO NO. 49/CTK/2018 5 YEAR AND COMMON ISSUES IN MORE THAN ONE ASSE SSMENT YEAR NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SH ALL BE DEALT WITH SEPARATELY 4. THE SAID MODIFICATIONS SHALL COME INTO EFFECT FROM THE DATE OF ISSUE OF THIS CIRCULAR. 6. CLEARLY, ALL OTHER PORTIONS OF THE CIRCULAR NO. 3 OF 2018 (SUPRA) HAVE REMAINED INTACT. THE PORTION WHICH HAS REMAINED INTACT INCLU DES PARAGRAPH 13 OF THE AFORESAID CIRCULAR WHICH IS AS FOLLOWS: 13.THIS CIRCULAR WILL APPLY TO SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/ APPEALS/ CROSS OBJ ECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARE 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. 7. IN VIEW OF THE ABOVE DISCUSSIONS, WE HEREBY HOLD THAT THE RELAXATION IN MONETARY LIMITS FOR DEPARTMENTAL APPEALS, VIDE CBDT CIRCULAR DAT ED 8 TH AUGUST 2019 (SUPRA) SHALL BE APPLICABLE TO THE PENDING APPEALS IN ADDITION TO THE APPEALS TO BE FILED HENCEFORTH. 8. LEARNED COMMISSIONER (DR) THEN SUBMITS LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIFICATIONS, AN D TO SEEK RECALL THE DISMISSAL OF APPEALS AND RESTORATION OF THE APPEALS IN THE CASES (I) IN WHICH IT CAN BE DEMONSTRATED THAT THE APPEALS ARE COVERED BY THE EXCEPTIONS, AND (II) WHICH ARE INADVERTENTLY INCLUDED IN THIS BUNCH OF APPEALS, WHEREIN THE TAX EFFECT, IN TERMS OF THE CBDT CIRCULAR (SUPRA), EXCEEDS RS 50,00,000. NONE OPPOSES THIS PRAYER; WE ACCEPT THE SAME. WE MAKE IT CLEAR THAT THE APPELLANTS SHALL BE AT LIBERTY TO POINT OUT THE CASES WHICH ARE WRONGLY INCLUDED IN THE APPEALS SO SUMMA RILY DISMISSED, EITHER OWING TO WRONG COMPUTATION OF TAX EFFECT OR OWNING TO SUCH CASES BEING COVERED BY THE PERMISSIBLE EXCEPTIONS - OR FOR ANY OTHER REASON, AND WE WILL TAKE APPROPRIATE REMEDIAL STEPS IN THIS REGARD. 9. IN THE LIGHT OF THE ABOVE DISC USSIONS, ALL THE APPEALS STAND DISMISSED AS WITHDRAWN. AS THE APPEALS FILED BY THE REVENUE ARE FOUND TO BE NON - MAINTAINABLE AND AS ALL THE RELATED CROSS - OBJECTIONS OF THE ASSESSEE ARISE ONLY AS A RESULT OF THOSE APPEALS AND MERELY SUPPORT THE ORDER O F THE CIT(A), THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALSO DISMISSED AS INFRUCTUOUS. ORDERED, ACCORDINGLY. ITA NO. 288 /CTK/201 8 CO NO. 49/CTK/2018 6 9 . LD D.R. SUBMITTED THAT AS PER PARA 4 OF CBDT CIRCULAR NO.17/2019 DATED 8 TH AUGUST, 2019, THE MODIFICATIONS SHALL COME INTO EFFECT FROM TH E DATE OF THIS ISSUE OF THIS CIRCULAR I.E. 8.8.2019. THEREFORE, IT IS NOT APPLICABLE TO THE PENDING APPEALS. 10 . AFTER CONSIDERING THE SUBMISSION OF LD D.R. AND KEEPING IN VIEW THE ORDER DATED 14.8.2019 OF THE ITAT AHMEDABAD BENCH IN THE CASE OF DINESH MUD HAVLAL PATEL (SUPRA), WE ARE OF THE VIEW THAT THE RELAXATION IN THE MONETARY LIMIT IN DEPARTMENTAL APPEALS VIDE CIRCULAR DATED 8 TH AUGUST, 2019 SHALL BE APPLICABLE TO THE PENDING APPEALS IN ADDITION TO THE APPEALS TO BE FILED HENCEFORTH. THUS, THE CONTENT ION OF LD D.R. IS DISMISSED. 11 . ACCORDINGLY, WE DISMISS THE APPEAL FILED BY THE REVENUE WITHOUT GOING INTO MERITS OF THE CASE. HOWEVER, IT IS MADE CLEAR THAT THE DEPARTMENT IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION, IF THE TAX EFFECT IS FOUND TO BE MORE THAN THE PRESCRIBED LIMIT OF RS.50,00,000/ - AS PER THE AMENDMENT CARRIED OUT BY THE CBDT IN CIRCULAR NO.17/2019, DATED 8 TH AUGUST, 2019, OR ANY OF THE CONDITIONS ETC. AS AVAILABLE IN THE AMENDED PARA 10 OF CIRCULAR NO.3/2018, DATED 20 TH AUGUST, 2018. ACCORDINGLY, THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. 12 . SINCE WE HAVE DISMISSED THE APPEAL OF REVENUE AS THE SAME IS NOT MAINTAINABLE DUE TO LOW TAX EFFECT, THEREFORE, THE CROSS OBJECTION FILED BY THE ASSESSEE HA S BECOME INFRUCT UOUS AND THE SAME IS DISMISSED. 13 . IN THE RESULT, APPEAL OF THE REVENUE AS WELL AS CROSS OBJECTION OF THE ASSESSEE , BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 / 01 /20 20 . SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK; DATED 29 / 01 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. ITA NO. 288 /CTK/201 8 CO NO. 49/CTK/2018 7 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) ITAT CUTTACK BENCH, CUTTACK 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//