M/s Kirtivardhan Finvest Services Ltd., Kolkata V. DCIT, CIR-12, Kolkata, Kolkata

CO 7/KOL/2014

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4144 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 6 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 04-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 29-01-2014
• Court: TRIBUNAL
• Department Lawyers: UDAYA KUMAR SARDAR
• Keywords: Tax effect

Judgement Text

1 ITA NO.2776/KOL/2013&C.O.NO.07/KOL/2014-M/S. KIRTIV ARDHAN FINVEST SERVICES LTD.A.Y.2006-07 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI WAS EEM AHMED, AM ] ITA NO.2776/KOL/2013 ASSESSMENT YEAR : 2006-07 D.C.I.T., CIRCLE-12, -VERSUS- M/S. KIRTIVARDHAN FINVEST KOLKATA SERVICES LTD, KOLKATA (PAN:AABCK 2706 P) (APPELLANT) (RESPONDENT) C.O.NO.07/KOL/2014 A/O ITA NO.2776/KOL/2013 ASSESSMENT YEAR : 2006-07 M/S. KIRTIVARDHAN FINVEST -VERSUS- D.C.I.T., CIRC LE-12, SERVICES LTD., KOLKATA KOLKATA (PAN:AABCK 2706 P) (CROSS OBJECTOR) (RESPONDENT) FOR THE DEPARTMENT: SHRI UDAYA KUMAR SARDAR, JC IT, SR.DR FOR THE ASSESSEE : SHRI SUJOY SEN, AR DATE OF HEARING : 04.07.2016. DATE OF PRONOUNCEMENT : 04.07.2016. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER DATED 25.09.2013 OF CIT(A)-XII, KOLKATA, RELATING TO AY 2006-07. THE A SSESSEE HAS FILED CROSS-OBJECTION BEING CO NO.07/KOL/2014 AGAINST THE VERY SAME ORDER OF THE CIT(A). 2. WHEN THIS APPEAL WAS TAKEN FOR HEARING THE LD. COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE TAX EFFECT IN THE APPEAL FILED BY THE DEPARTMENT IS LESS THAN RS.10 LAKHS. THIS WAS NOT DISPUTED BY THE LD. DR.. 3. RECENTLY THE CBDT HAS ISSUED CIRCULAR NO. 2 1/2015, DATED 10TH DECEMBER, 2015, WHEREBY THE MONETARY LIMITS FOR FILING OF AP PEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE SUPREME COURT HAVE BEEN INCREASED AS MEASURE FOR REDUCING LITIGATION. THE REVISED MONETARY LIMITS LAID 2 ITA NO.2776/KOL/2013&C.O.NO.07/KOL/2014-M/S. KIRTIV ARDHAN FINVEST SERVICES LTD.A.Y.2006-07 DOWN IN PARA-3 OF THIS CIRCULAR AND THE MANNER OF C OMPUTING 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 HEREUNDER: - 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 PRESCRIBED ABOVE. FILIN G 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 CH ARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'D ISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS T HE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RE TURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX O N 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. 4. IN PARA-10 OF THE SAID CIRCULAR IT HAS FURTHER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RE LEVANT 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/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSE D. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 5. IN THE PRESENT CASE, THE TAX EFFECT IN THIS AP PEAL BY THE REVENUE IS LESS THAN RS.10,00,000/-. THOUGH THIS APPEAL HAD BEEN FILED BY THE REVENUE PRIOR TO THE ISSUE OF THE CIRCULAR OF THE CBDT AND WAS WITHIN THE MONETAR Y LIMIT IN THE FORM OF TAX EFFECT FOR FILING APPEALS BEFORE TRIBUNAL, WHEN THE APPEAL WAS FILED, IN VIEW OF PARA-10 OF THE 3 ITA NO.2776/KOL/2013&C.O.NO.07/KOL/2014-M/S. KIRTIV ARDHAN FINVEST SERVICES LTD.A.Y.2006-07 CIRCULAR OF CBDT, EVEN SUCH APPEALS WILL BE GOVERNE D BY THE NEW MONETARY LIMITS LAID DOWN IN THE CBDT CIRCULAR NO.21/2015 REFERRED TO ABOVE. 6. IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED BY 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 DECISI ONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THA T WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUN D BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY T O THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRA RY TO THE CIRCULAR ISSUED BY THE CBDT CIRCULAR NO.21 DATED 10.12.2015. 6.1. IN THE EVENT THE REVENUE FINDS AT A LATER POIN T OF TIME THAT THE TAX EFFECT IN THE APPEAL IS MORE THAN RS.10 LAKHS OR DESPITE LOW TAX EFFECT THE APPEAL OF THE REVENUE IS MAINTAINABLE, THE REVENUE IS AT LIBERTY TO MOVE TH IS TRIBUNAL FOR RECALL OF THIS ORDER. 7. 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 CONTRARY T O THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE . 8. THE CROSS OBJECTION FILED BY THE ASSESSEE WAS NO T PRESSED AND THE CROSS OBJECTION IS DISMISSED AS NOT PRESSED. 9. IN THE RESULT, THE APPEAL BY THE REVENUE AS WE LL AS THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. O RDER PRONOUNCED IN THE COURT ON 04-07-2016. SD/- SD/- [WASEEM AHMED ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 04-07-2016 [RG PS] 4 ITA NO.2776/KOL/2013&C.O.NO.07/KOL/2014-M/S. KIRTIV ARDHAN FINVEST SERVICES LTD.A.Y.2006-07 COPY OF THE ORDER FORWARDED TO: 1.M/S. KIRTIVARDHAN FINVEST SERVICES LTD., 23C, ASH UTOSH CHOWDHURY AVENUE, KOLKATA-700019. 2.D.C.I.T., CIRCLE-12, KOLKATA 3. CIT(A)-XII, KOLKATA 4. CIT-IV, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY B Y ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES KOLKATA BENCHES