Shri Bimal Nanjibhai Sonagara, Development Officer, JAMNAGAR V. The Income Tax Officer, Ward-3(3), JAMNAGAR

CO 52/RJT/2011

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6485 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 08-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 03-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: KAMLESH RATHOD
• Keywords: Tax effect
• Section: 10(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.239/RJT/2011 (ASSESSMENT YEAR 2004-05) ITO, WD.3(3) VS SHRI BIMAL NANJIBHAI SONAGRA JAMNAGAR DEVELOPMENT OFFICER LIC OF INDIA, ABHAY SHOPPING CENTRE, OPP. DSP BUNGALOW NEAR TEEN BATTI, JAMNAGAR PAN : AGYPS8434L (APPELLANT) (RESPONDENT) C.O. NO 52/RJT/2011 (ARISING OUT OF ITAS NO.239/RJT/2011) (ASSESSMENT YEAR 2004-05) SHRI BIMAL NANJIBHAI SONAGRA VS ITO, WD.3(4) JAMNAGAR JAMNAGAR (CROSS OBJECTOR) (RESPONDENT) DATE OF HEARING : 08-09-2011 DATE OF PRONOUNCEMENT : 08-09-2011 REVENUE BY : SHRI MK SINGH ASSESSEE BY : SHRI KAMLESH RATHOD O R D E R PER BENCH THIS APPEAL IS FILED BY THE REVENUE WHICH ARISE OU T OF THE ORDER OF CIT(A), JAMNAGAR FOR THE ASSESSMENT YEAR 2004-05. THE CROS S OBJECTION IS FILED BY THE ASSESSEE. 2. WE HAVE HEARD SHRI MK SINGH, THE LD.DR AND SHRI KAMLESH RATHOD, THE LD.REPRESENTATIVE FOR THE ASSESSEE. ITA NO.239/RJT/2010 2 3. THE SOLE ISSUE INVOLVED IN THE APPEAL FILED BY T HE REVENUE PERTAINS TO DISALLOWANCE U/S 10(14) OF THE ACT. THE LD.REPREEN TATIVES OF THE PARTIES SUBMITTED THAT THE TAX EFFECT INVOLVED IN THE APPEAL IS BELOW THE TAXABLE LIMIT RS.3 LAKHS PRESCRIBED BY THE CBDT FOR PRESENTATION OF APPEAL B EFORE THE TRIBUNAL. WE FIND THAT UNDER SUCH CIRCUMSTANCES THE ITAT, RAJKOT HAS DISMISSED REVENUES APPEAL IN LIMINE IN ITA NO.647/RJT/2010 DATED 18-03-2011. THE RELEVANT FINDING IS REPRODUCED AS UNDER: 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF TH E PARTIES AND PERUSED THE RECORD. THE LD.AR OF THE ASSESSEE PLACED BEFORE US A COPIES OF BOARDS INSTRUCTIONS NO.5/2008 DATED 15-5-2008 AND NO.3/2011 (F.NO.279/MISC.142/2007-ITJ) DATED 9-2-20 11 AND POINTED OUT THAT THE BOARD HAS EXPRESSLY PROHIBITED THE DEPARTMENT FROM FILING THE APPEAL BEFORE THE TRIBUNAL IN A CAS E WHERE THE TAX EFFECT IS LESS THAN RS.3 LAKHS. THE LD.DR POINTED OUT THAT IN INSTRUCTION NO. 3/2011 (.NO.279/MISC. 142/2007-ITJ) DATED 09-02- 2011 IT HAS BEEN CLEARLY STATED AT PARAGRAPH 11 THA T THESE INSTRUCTIONS WILL APPLY ONLY IN RESPECT OF APPEALS FILED ON OR AFTER 15- 05-2008 AND THIS APPEAL IS FILED BEFORE THE INSTRUC TION IS ISSUED. THE SAID CLAUSE READS AS FOLLOWS: 11. THIS INSTRUCTION WILL APPLY TO APPEALS FILED O N OR AFTER 15 TH OF MAY 2008. HOWEVER, THE CASES WHERE APPEALS HAVE BE EN FILED BEFORE 15 TH OF MAY 2008 WILL BE GOVERNED BY THE INSTRUCTIONS O N THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 3. ON THE OTHER, THE LD.AR FILED A COMPARATIVE CHAR T OF BOTH THE INSTRUCTIONS, I.E. INSTRUCTIONS INSTRUCTIONS NO.5/2 008 DATED 15-5- 2008 AND NO.3/2011 (F.NO.279/MISC.142/2007-ITJ) DAT ED 9-2- 2011. HE SUBMITTED THAT IN INSTRUCTION DATED 15-05 -2008 SIMILAR CLAUSE WAS ALREADY THERE. APART FROM THIS, THE BOM BAY HIGH COURT IN THE CASE OF CIT VS PITHWA ENGG WORKS 276 ITR 51 9 (BOM) HELD THAT THE CENTRAL BOARD OF DIRECT TAXES BY ITS CI RCULAR DATED MARCH 27,2000, HAS TAKEN A POLICY DECISION NOT TO F ILE REFERENCES IF THE TAX EFFECT IS LESS THAN RS.2 LAKHS. THE CIRCUL AR IS APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDE D. THE ITA NO.239/RJT/2010 3 DEPARTMENT CANNOT CONTEND THAT CIRCULAR IS BINDING ONLY WITH RESPECT TO THE NEW CASES AND NOT WITH RESPECT TO TH E OLD REFERRED CASES EVEN IF THE TAX IS LESS THAN RS.2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN THE LIGHT OF THE JUDGMENT OF THE BOMBAY HIGH COURT WE FIND THAT THE INSTRUCTION DATED 09-02-2011 IS APPLICABLE TO APPEALS FILED BEF ORE ISSUANCE OF INSTRUCTION DATED 09-02-2011. 4. IN THIS VIEW OF THE MATTER, AND IN THE LIGHT OF THE JUDGMENT OF THE BOMBAY HIGH COURT CITED SUPRA, WE DISMISS THE A PPEAL FILED BY THE REVENUE AS NOT MAINTAINABLE SINCE THE TAX EFFEC TIVE INVOLVED IN THE APPEAL IS BELOW RS.3 LAKHS. WE FOLLOW THE ABOVE ORDER OF ITAT AND IN THE LIGHT OF THAT THE APPEAL FILED BY THE REVENUE IS DISMISSED IN LIMINE. 4. THE CROSS OBJECTION FILED BY THE ASSESSEE HAS NO T BEEN PRESSED AT THE TIME OF HEARING, HENCE THE SAME IS DISMISSED FOR WA NT OF PROSECUTION. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE A ND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08-09-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 08 TH SEPTEMBER, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A), JAMNAGAR 4. THE CIT, JAMNAGAR 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT