Banabir Dasgupta, Kolkata V. I.T.O Wd - 54(4),kolkata, Kolkata

CO 63/KOL/2013

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 1915 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 22-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BANABIR DASGUPTA
• Assessee Lawyers: VIVEK VERMA JCITSRDR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 729 / KOL / 2013 & C.O. NO.63/KOL/2013 (A/O ITA NO. 729/KOL/2013) ASSESSMENT YEAR :2002-03 INCOME TAX OFFICER WARD-54(4), 3 GOVT. PLACE WEST, 1 ST FLOOR, KOLKATA-700 001 BANABIR DASGUPTA, 5E, RAIPUR ROAD(E), 1 ST FLOOR, FLAT-2, P.S. JADAVPUR, KOLKATA-32 V/S . V/S . BANABIR DASGUPTA, 5E, RAIPUR ROAD(E), 1 ST FLOOR, FLAT-2, P.S. JADAVPUR, KOLKATA-32 [ PAN NO. AGCPD 7503 R ] INCOME TAX OFFICER, WARD- 54(4), 3 GOVT. PLACE WEST, 1 ST FLOOR, KOL-01 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI VIVEK VERMA, JCIT-SR-DR /BY REVENUE SHRI BANABIR DASGUPTA, ASSESSEE /DATE OF HEARING 15-12-2015 ! /DATE OF PRONOUNCEMENT 13-01-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE AND CROSS OBJECTION (CO ) BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOM E TAX (APPEALS)-XXXVI, KOLKATA DATED 01.02.2013 RELATING TO ASSESSMENT YEA R 2002-03. 2. RECENTLY THE CBDT HAS ISSUED CIRCULAR NO. 2 1/2015, DATED 10TH DECEMBER, 2015, WHEREBY THE MONETARY LIMITS FOR FIL ING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HON'BLE HIGH COURTS ITA NO.729/KOL/2013 & CO 63/KOL/2013 A.Y. 2002 -03 ITO WD-54(4) KOL. V. BANABIR DASGUPTA PAGE 2 AND SLP BEFORE HON'BLE SUPREME COURT HAVE BEEN INCR EASED AS MEASURE FOR REDUCING LITIGATION. THE REVISED MONETARY LIMITS LAID DOWN IN PARA-3 OF THIS CIRCULAR AND THE MANNER OF COMPUTING TAX EFFECT AS LAID DOWN IN PARA-4 OF THIS CIRCULAR ARE AS FOLLOWS: 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED I N CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HE REUNDER: - SL. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS) 1. BEFORE APPELLATE TRIBUNAL 10,00,000/- 2. BEFORE HIGH COURT 20,00,000/- 3. BEFORE SUPREME COURT 25,00,000/- IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCR IBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEA L IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'DISPUTED ISSUES' ). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHAR GEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EF FECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 3. IN PARA-10 OF THE SAID CIRCULAR IT HAS BEEN FUR THER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RELEVANT PARA-10 OF THE CIRCULAR READS THUS: 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIB UNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 AB OVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERA TIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. ITA NO.729/KOL/2013 & CO 63/KOL/2013 A.Y. 2002 -03 ITO WD-54(4) KOL. V. BANABIR DASGUPTA PAGE 3 4. IN THE PRESENT CASE, THE TAX EFFECT IN THIS APP EAL BY THE REVENUE IS LESS THAN RS.10,00,000/-. THOUGH THIS APPEAL HAD BEEN FILED BY THE REVENUE ON 2.7.2013 AND WAS WITHIN THE MONETARY LIMIT IN THE F ORM OF TAX EFFECT FOR FILING APPEALS BEFORE TRIBUNAL, IN VIEW OF PARA-10 OF THE CIRCULAR OF CBDT, EVEN SUCH APPEALS WILL BE GOVERNED BY THE NEW MONETARY LIMITS LAID DOWN IN THE CBDT CIRCULAR NO.12/2015 REFERRED TO ABOVE. 5. IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED B Y CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX CO URT IN THE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATION L TD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DE CISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND L AID DOWN THAT WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE R EVENUE IS BOUND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUC TION NO.3 DATED 9.2.2011. 6. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL FI LED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CO NTRARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY T HE DEPARTMENT IS DISMISSED IN LIMINE . 7. HENCE, THE REVENUES APPEAL IS DISMISSED IN LIMI NE, THE CO FILED BY ASSESSEE IS INFRUCTUS. IN VIEW OF ABOVE, ASSESSEES IS DISMISSED AS INFRUCTUS. 8. IN THE RESULT, REVENUES APPEAL IS DISMISSED IN LIM INE AND CO OF ASSESSEE IS DISMISSED AS INFRUCTUS. ORDER PRONOUNCED IN THE OPEN COURT 13/0 1/2016 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP '#$- 13 / 0 1/201 6 ITA NO.729/KOL/2013 & CO 63/KOL/2013 A.Y. 2002 -03 ITO WD-54(4) KOL. V. BANABIR DASGUPTA PAGE 4 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-BANBIR DASGUPA, 5E, RAIPUR ROAD(E), 1 ST FLOOR, FLAT-2, KOLKATA-32 2. /REVENUE-ITO, WARD-54(4), 3, GOVT. PLACE (W), 1STD FLOOR, KOLKATA-01 3.#,#-. / / CONCERNED CIT KOLKATA 4. /- / CIT (A) KOLKATA 5.2 3455-., -.!, / DR, ITAT, KOLKATA 6.489:; / GUARD FILE. BY ORDER/ , /TR UE COPY/ /# -.!,