Smt. C. Padma, Bangalore V. DCIT, Bangalore

CO 62/BANG/2010

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6551 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 13-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-10-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 14-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G V GOPALA RAO CIT IDR
• Assessee Lawyers: S VENKATESAN
• Keywords: Retrospective amendment; Block assessment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NOS. 1259 & 1260/BANG/2010 ASSESSMENT YEARS : 2005-06 & 2004-05 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1(4), BANGALORE. VS. SMT. C. PADMA, NO.1583, ANNASANDRA PALYA, HAL PO, NEAR SRI RAMA TEMPLE, BANGALORE 560 017. PAN : AAHPC 2285K APPELLANT RESPONDENT CO NOS. 62 & 64/BANG/2010 ( IN ITA NOS. 1259 & 1260/BANG/2010 ) ASSESSMENT YEARS : 2005-06 & 2004-05 SMT. C. PADMA, NO.1583, ANNASANDRA PALYA, HAL PO, NEAR SRI RAMA TEMPLE, BANGALORE 560 017. PAN : AAHPC 2285K VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1(4), BANGALORE CROSS OBJECTOR RESPONDENT REVENUE BY : SHRI G.V. GOPALA RAO, CIT-I(DR) ASSESSEE BY : SHRI S. VENKATESAN, C.A. DATE OF HEARING : 13.10.2011 DATE OF PRONOUNCEMENT : 13.10.2011 ITA NO.1259 & 1260/B/10 & CO NOS.62 & 64/B/10 PAGE 2 OF 5 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THE APPEALS BY THE DEPARTMENT AND THE CROSS OBJEC TIONS BY THE ASSESSEE ARE ARISING OUT OF THE SEPARATE ORDERS EAC H DATED 06.09.2010 OF THE CIT(APPEALS)-VI, BANGALORE FOR THE ASSESSMENT Y EARS 2005-06 & 2004- 05 RESPECTIVELY. SINCE THE APPEALS AND CROSS OBJEC TIONS WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF BY THIS CONSO LIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE, AT THE VERY OUTSET, STATED THAT THE TAX EFFECT INVOLVED IN BOTH THE DEPARTMENTAL APPEALS IS LESS THAN RS.2 LAKHS, THEREFORE, AS PER THE GUIDELINES ISSUED BY THE CBDT AND THE PROVISIONS OF SECTION 268A OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT IN SHORT], T HE DEPARTMENTS APPEALS DESERVE TO BE DISMISSED. IT WAS FURTHER STATED TH AT EVEN ON MERITS, THE DEPARTMENTS APPEALS ARE NOT MAINTAINABLE SINCE THE ASSESSMENT IN THE PRESENT CASES WERE MADE ON PROTECTIVE BASIS AND THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. WIPRO FINANCE LTD. (2009) 177 TAXMAN 521 (KAR.) HAS HELD THAT IN SEARCH CASES PROTECTIVE ASSESSMEN T CANNOT BE MADE. 3. IN HIS RIVAL SUBMISSIONS, THE LD. CIT(DR) SUBMIT TED THAT THE CBDT INSTRUCTIONS WITH REGARD TO TAX EFFECT ARE NOT APPL ICABLE IN A CASE WHERE THE ISSUE INVOLVED IS LEGAL AND TECHNICAL, THEREFORE TH E APPEALS OF THE DEPARTMENT ARE MAINTAINABLE. ITA NO.1259 & 1260/B/10 & CO NOS.62 & 64/B/10 PAGE 3 OF 5 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND THE MATERIAL ON RECORD. IT IS NOTICED THAT SECTION 26 8A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FRO M 1.4.99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTH ORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PU RPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFE RENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PROVISIONS OF THIS C HAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTION S OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME- TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFEREN CE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR AP PLICATION 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 UND ER SUB-SECTION (1), IT SHALL NOT LAWFUL FOR AN ASSESSEE, BEING A P ARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHOR ITY HAS ACQUIESCED IN THE 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 HAVE REGARD TO THE ORDERS, INSTRUC TIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIR CUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENC E WAS FILED NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HA S BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN A PPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE B EEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SEC TIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ITA NO.1259 & 1260/B/10 & CO NOS.62 & 64/B/10 PAGE 4 OF 5 5. IN THE PRESENT CASES IT IS NOTICED THAT THE TAX INVOLVED IN BOTH THE ASSESSMENT YEARS FOR WHICH THE DEPARTMENT HAS PREFE RRED APPEALS IS LESS THAN RS.2 LAKHS AND AS PER THE INSTRUCTIONS NO.5/20 08 DATED MAY 15, 2008 ISSUED BY THE CBDT, THE DEPARTMENT OUGHT NOT TO HAV E FILED THE APPEALS IF THE TAX EFFECT IS LESS THAN RS.2 LAKHS. 6. EVEN ON MERITS, IT IS NOTICED THAT IN THESE CASE S FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION, THE ASSESSMEN T WAS FRAMED ON PROTECTIVE BASIS EVEN WHEN SEARCH TOOK PLACE AT THE PREMISES OF THE ASSESSEE. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. WIPRO FINANCE LTD. (2009) 177 TAXMAN 521 (KAR.) HAS HELD THAT WHERE INCOME, WHICH HAS BEEN ASSESSED AS UNDISCLOSED INCOME FOR B LOCK PERIOD, CANNOT BE ASSESSED IN REGULAR ASSESSMENT OF ANY PREVIOUS Y EAR INCLUDED IN BLOCK PERIOD, ON PROTECTIVE BASIS. AS PER THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE AFORESAID REFERRED TO CASE, BLOCK ASSESSMENTS FRAMED ON PROTECTIVE BASIS ARE NOT MAIN TAINABLE. SO VIEWED FROM ANY ANGLE, THE APPEALS BY THE DEPARTMENT DESER VE TO BE DISMISSED. WE ORDER ACCORDINGLY. 7. AS REGARDS CROSS OBJECTIONS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HAS INSTRUCTIONS NOT TO PRESS THE SE CROSS OBJECTIONS AND GAVE IN WRITING AS CO NOT PRESSED. IN VIEW OF T HE ABOVE THE CROSS OBJECTIONS BY THE ASSESSEE ARE DISMISSED. 8. IN THE RESULT, THE APPEALS OF THE DEPARTMENT AND THE CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ITA NO.1259 & 1260/B/10 & CO NOS.62 & 64/B/10 PAGE 5 OF 5 PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF OCTOBER, 2011. SD/- SD/- ( SMT. P. MADHAVI DEVI ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH OCTOBER, 2011. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.