The ACIT, - 3(1), Indore V. M/s Westend Management Technologies Ltd., Indore

ITA 102/IND/2011

• Counselvise Citation: 10222714 RSA 2011
• Duration Of Justice: 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2000-2001
• Appeal Filed On: 10-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: S S SOLANKI
• Keywords: Depreciation; Tax effect
• Section: 260A; 68; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.480/IND/2010 AY: 2005-06 ITO-4(3), INDORE ..APPELLANT V/S. M.S. SIDDIQUI, INDORE PAN AEXPS 7946 G ..RESPONDENT APPELLANT BY SHRI ARUN DEWAN, SR. DR RESPONDENT BY SHRI S.S. SOLANKI, CA ITA NO.87/IND/2011 AY: 2005-06 ACIT-2(1), INDORE ..APPELLANT V/S. PRAVIN MITTAL, INDORE PAN AFDPM 4586 R ..RESPONDENT ITA NO.88/IND/2011 AY: 2005-06 2 ACIT-2(1), INDORE ..APPELLANT V/S. SMT. SHARDADEVI MITTAL, INDORE PAN ACVM 4511 B ..RESPONDENT IT(SS)A NO.26/IND/2011 AY: 2007-08 ACIT-2(1), INDORE ..APPELLANT V/S. MAHESH MITTAL HUF, INDORE PAN AAGHM 2046 G ..RESPONDENT APPELLANT BY SHRI ARUN DEWAN, SR. DR RESPONDENTS BY SHRI S.N. AGRAWAL, CA ITA NO.617/IND/2010 AY: 2006-07 ACIT-3(1), BHOPAL ..APPELLANT V/S. M/S. TESLA TRANSFORMERS LTD., BHOPAL PAN AABCT 1005 C ..RESPONDENT APPELLANT BY SHRI ARUN DEWAN, SR. DR RESPONDENT BY WRITTEN SUBMISSION 3 ITA NO.102/IND/2011 AY: 2000-01 ACIT-3(1), INDORE ..APPELLANT V/S. WESTEND MANAGEMENT TECHNOLOGIES LTD., INDORE PAN AAACW 1623 N ..RESPONDENT ITA NO.104/IND/2011 AY: 2002-03 ACIT-3(1), INDORE ..APPELLANT V/S. M/S. PARKSONS SECURITIES LTD., INDORE PAN AAACP 9819 M ..RESPONDENT ITA NO.524/IND/2010 AY: 2005-06 ITO-1(2), BHOPAL ..APPELLANT V/S. BRAJENDRA GUPTA PROP. SHRIJEE ADVERTISING AGENCY, BHOPAL PAN AEKPG 6176 K ..RESPONDENT 4 ITA NO.571/IND/2010 AY: 2006-07 ACIT-1(1), BHOPAL ..APPELLANT V/S. M/S. R.C. CONSTRUCTION, BHOPAL PAN AAHFR 6923 J ..RESPONDENT ITA NO.598/IND/2010 AY: 2005-06 ACIT-3(1), INDORE ..APPELLANT V/S. M/S. V.K.M. ELECTRICALS LTD., BHOPAL PAN AABCV 5314 Q ..RESPONDENT ITA NO.599/IND/2010 AY: 2006-07 ACIT-3(1), BHOPAL ..APPELLANT V/S. VIJAYANTIMALA GANGWANI, BHOPAL PAN AEWPG 6574 M ..RESPONDENT 5 ITA NO.620/IND/2010 AY: 2005-06 ACIT-3(1), BHOPAL ..APPELLANT V/S. M/S. SHRI CHAR BHUJA CONSTRUCTION, JOBAT, JHABUA PAN AAJCS 2231 F ..RESPONDENT ITA NO.556/IND/2010 AY: 2002-03 DCIT-1(1), INDORE ..APPELLANT V/S. M/S. BALAJI OIL INDUSTRIES, BAGH DISTRICT DHAR PAN AAGFB 8981 P ..RESPONDENT APPELLANTS BY SHRI ARUN DEWAN, SR. DR RESPONDENT BY NONE ORDER PER BENCH THE ABOVE APPEALS ARE FILED BY THE REVENUE AGAINST THE DIFFERENT ORDERS OF THE LD. CIT(A) FOR THE DIFF ERENT ASSESSMENT YEARS AS MENTIONED ABOVE. 6 2. DURING HEARING OF THESE APPEALS, THE LD. COUNSEL S FOR RESPECTIVE ASSESSEES CONTENDED THAT THE TAX EFF ECT IN THE PRESENT APPEALS IS BELOW THE PRESCRIBED LIMIT, THEREFORE, THE THESE APPEALS OF THE REVENUE DESERVE S TO BE DISMISSED ON THIS COUNT ITSELF BY FURTHER SUBMITTIN G THAT NO APPEAL CAN BE FILED BEFORE THE TRIBUNAL WHICH IS HAVING THE TAX EFFECT LESS THAN RS. 3 LACS. THIS FACTUAL M ATRIX WAS FAIRLY CONSENTED BY THE LEARNED SR. DR BUT SUBMITTED THAT THE CIRCULAR OF CBDT IS EFFECTIVE ON LY IN RESPECT OF APPEALS FILED AFTER 9.2.2011, THEREFORE, THE SUBMISSION OF THE ASSESSEES IS NOT TENABLE IN RESPE CT OF THE APPEALS WHEREIN THE TAX EFFECT IS MORE THAN RS. 2 LACS AND WHICH HAVE BEEN FILED PRIOR TO 9.2.2011. IN REP LY, THE LD. COUNSELS FOR RESPECTIVE ASSESSEE CONTENDED THAT IDENTICALLY THE HONBLE JURISDICTIONAL HIGH COURT H AS HELD THAT IT IS APPLICABLE TO THE APPEALS WHICH ARE PEND ING BEFORE THE TRIBUNAL AND PLACED RELIANCE UPON THE DECISION IN CIT V. ASHOK KUMAR MANIBHAI PATEL & COMPANY (2009) 317 ITR 386 (MP), ITO VS. M/S LAXMI 7 JEWELS PRIVATE LIMITED (ITA NO. 2165/MUM/2010). ITA T, INDORE BENCH HAS ALSO FOLLOWED THE ABOVE DECISIONS IN CASE OF CASE OF ACIT VS. NATHULAL JAIN (ITA NO. 475/IND/2010) ORDER DATED 29.6.2011. THE TRIBUNAL, IN THIS ORDER, HAS DELIBERATED UPON THE ISSUE OF TAX E FFECT IN DETAIL, IN WHICH, THE APPEAL OF THE REVENUE WAS DISMISSED BEING TAX EFFECT BELOW PRESCRIBED LIMIT. THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDE R: AGGRIEVED BY THE ORDER DATED 3 RD MARCH, 2010 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE IS IN APPEAL ON THE GROUND THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS. 7,85,000/- OUT OF TOTAL ADDITION OF RS. 8,85,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED LOAN CREDIT U/S 68 OF THE ACT WHEREAS THE ASSESSEE HAS FILED THE CROSS OBJECTION ON THE GROUND THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RESPECT OF THE ADDITION OF RS. 1 LAC MADE U/S 68 OF THE ACT WITHOUT CONSIDERING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HIM. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR ASSESSEE CONTENDED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE PRESCRIBED LIMIT, THEREFORE, THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED ON THIS COUNT ITSELF BY FURTHER SUBMITTING THAT THE TAX EFFECT IS RS. 2,52,450/- AND NO APPEAL CAN BE FILED BEFORE THE TRIBUNAL 8 WHICH IS HAVING THE TAX EFFECT LESS THAN RS. 3 LACS . THIS FACTUAL MATRIX WAS FAIRLY CONSENTED BY THE LEARNED SR. DR BUT SUBMITTED THAT THE CIRCULAR OF CBDT IS EFFECTIVE FROM A PARTICULAR DATE, THEREFORE, THE SUBMISSION OF THE ASSESSEE IS NOT TENABLE. IN REPLY, THE LD. COUNSEL FOR ASSESSEE CONTENDED THAT IDENTICALLY THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT IT IS APPLICABLE TO THE APPEALS WHICH ARE PENDING BEFORE THE TRIBUNAL AND PLACED RELIANCE UPON THE DECISION IN CIT V. ASHOK KUMAR MANIBHAI PATEL & COMPANY (2009) 317 ITR 386 (MP), ITO VS. M/S LAXMI JEWELS PRIVATE LIMITED (ITA NO. 2165/MUM/2010). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON FILE. UNDISPUTEDLY, THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE PRESCRIBED MONETARY LIMIT IN FILING THE APPEAL BEFORE THE TRIBUNAL. THEREFORE, WE ARE REPRODUCING HEREUNDER THE DECISION OF THE TRIBUNAL IN THE CASE OF RAJAN CLOTH STORES (ITA NO. 365/IND/2010) ORDER DATED 31.5.2011 :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, INDORE, DATED 4.3.2010 ON THE GROUND THAT THE LD. CIT(A) ERRED IN OVERLOOKING THE PROVIS ION OF SEC. 275(1A) OF I.T. ACT AND DELETING PENALTY U/S 2 71(1)(C) FOR RS.2,32,780/-. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I PRADEEP KUAMR MITRA, LD. SR. DR FOR THE REVENUE AND SHRI S.S. DESHPANDE, LD. COUNSEL FOR THE ASSESSEE. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW PRESCRIBED MONETARY LIMIT, THEREFORE, STRAIGHT WAY, THE APPEAL OF THE REVENUE MAY BE DISMISSED. THE LD. SR. DR FAIRLY ADMITTED THAT THE TAX EFFECT IS BELOW PRESCR IBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSIO N, ON THE ISSUE OF TAX EFFECT, THE BENCH IN THE CASE OF A CIT VS. M/S. SHRIRAM NUTRIENTS LTD. IN ITA NO.123/IND/2010 (A.Y. 2002-03) VIDE ORDER DATED 28.10.2010 HELD AS UNDE R: 9 THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER O F THE LEARNED CIT(A)-UJJAIN, DATED 16.12.2009 ON THE GROUND WHETHER IN THE FACTS AND CIRCUMSTANCES OF TH E CASE, LD. CIT(A) ERRED IN TREATING THE ASSESSMENT M ADE BY THE A.O. AS INFRUCTUOUS, WITHOUT APPRECIATING TH E FACT THAT OTHERWISE ON 6.3.2006 (THE DATE OF ISSUE OF NO TICE) THE A.O. WAS EMPOWERED TO ISSUE NOTICE U/S 148 FOR THE A.Y. 2002-03, IN VIEW OF THE PROVISIONS OF SECTION 149(1)(A) READ WITH SECTION 151(1) OF THE IT ACT, 1 961? 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I S.S. DESHPANDE, LD. COUNSEL FOR THE ASSESSEE AND SH RI P.K. MITRA, LEARNED SENIOR DR. THE CRUX OF ARGUMENT IS THAT THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW MONETARY PRESCRIBED LIMIT, THEREFORE, STRAIGHT WAY THE APPEAL OF THE REVENUE MAY BE DISMISSED. THE LD. SR. DR SHRI P.K. MITRA FAIRLY ADMITTED THAT THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IN THE PRESENT APPEAL, THE INC OME ASSESSED IS RS.1,37,880/- AND THE TAX INVOLVED IS RS.40,611/- ONLY, THEREFORE, WITHOUT GOING INTO MER ITS OF THE CASE ON THE PRIMARY OBJECTION OF MONETARY LIMIT , THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OUR VIEW IS SUPPORTED BY THE DECISION OF THE TRIBUNAL I N HIMANSHU FLOUR MILLS (ITA NO.506/IND/2009, ORDER DA TED 26.5.2010). THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER: THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 26.8.2009 ON THE GROUND TH AT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WA S NOT JUSTIFIED IN DELETING THE ADDITION OF RS. 5,46, 831/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON FIXED ASSETS AND A LSO IN DIRECTING THE ASSESSING OFFICER TO ALLOW CARRY FORW ARD OF BROUGHT FORWARD LOSSES OF EARLIER YEARS. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD THE LEARNED COUNSELS FROM BOTH THE SIDES AND CONSIDERED THE ARGUMENTS ADVANCED BY THEM. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE RAISED A PRELIMINARY OBJEC TION THAT SINCE THE TAX EFFECT IS BELOW THE PRESCRIBED M ONETARY LIMIT, THEREFORE, THE DEPARTMENT IS NOT PERMITTED T O FILE THIS APPEAL AND THE SAME DESERVES TO BE DISMISSED ON THI S SHORT GROUND ITSELF. HOWEVER, THE LEARNED SR. DR FA IRLY AGREED THAT THE TAX EFFECT IS BELOW PRESCRIBED MONE TARY LIMIT. 10 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE ASSERTI ON OF THE LEARNED RESPECTIVE COUNSELS, WE ARE OF THE CONSIDERED OPINION THAT THIS APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OUR VIEW FINDS SUPPORT FR OM THE DECISION DATED 2 ND DECEMBER, 2009 OF THE TRIBUNAL IN THE CASE OF HIMANSHU FLOOR MILLS (ITA NO. 507/IND/2 009). THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER :- THIS APPEAL IS BY THE REVENUE CHALLENGING THE ORD ER OF THE CIT(A) DATED 26.8.2009. DURING HEARING OF THIS APPEAL, I HAVE HEARD SMT. APARNA KARAN, LEARNED SENIOR DR, AN D NO- BODY WAS PRESENT FOR THE ASSESSEE. REGISTERED NOTI CE OF HEARING WAS SENT TO THE ASSESSEE ON 11.11.2009. TH E ASSESSEE NEITHER PRESENTED ITSELF NOR MOVED ANY APPLICATION FOR ADJOURNMENT, THEREFORE, I HAVE NO OPTION BUT TO PRO CEED EX- PARTE QUA THE ASSESSEE AND DISPOSE OF THIS APPEAL O N THE BASIS OF MATERIAL AVAILABLE IN THE FILE. 2. THE FIRST GROUND RAISED IS THAT THE LEARNED FIRS T APPELLATE AUTHORITY ERRED IN DELETING THE ADDITION OF RS.4,26,936/- MADE ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON THE FIXED ASSETS. ON QUESTIONING F ROM THE BENCH ABOUT THE TAX EFFECT, IT WAS FAIRLY POINTED O UT THAT THE TAX EFFECT IS BELOW THE PRESCRIBED MONETARY LIMIT. I HAVE CONSIDERED THE SUBMISSIONS PUT-FORTH BY THE LEARNED SENIOR DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 3. BRIEF FACTS ARE THAT THE ASSESSEE CLAIMED DEPREC IATION OF RS. 8,53,871/- ON THE FIXED ASSETS. THE LEARNED ASSESSING OFFICER BASED UPON THE COMMENTS OF THE AUDITORS IN THE NOTES TO ACCOUNTS AND THE NATURE OF THE BUSINESS, DISALLO WED 50% OF THE DEPRECIATION CLAIMED BY THE ASSESSEE WHICH WAS WORKED OUT AT RS.4,26,936/-. BEFORE THE LEARNED FIRST APP ELLATE AUTHORITY THE SUBMISSION OF THE ASSESSEE WAS THAT T HE FIXED ASSETS WERE DULY REFLECTED IN THE BALANCE SHEET DUR ING THE RELEVANT PERIOD AND THERE WAS NO NEW ADDITION IN TH E ASSETS. THE DEPRECIATION ON ALL THE ASSETS WAS REGULARLY AL LOWED SINCE THE DATE OF INCLUSION IN THE BALANCE SHEET. EVEN I N THE IMPUGNED ORDER THERE IS A FACTUAL FINDING THAT THE ASSESSEE FROM THE DATE OF INCLUSION HAS NOT SHOWN IN ADDITIO N TO THE BLOCK OF ASSETS AS THE WDV AS ON 31.3.2002 WAS TAKE N AS BASIS AFTER REDUCING THE SALE OF SOME ASSETS FOR THE CALC ULATION OF ALLOWABLE DEPRECIATION FOR THE ASSESSMENT YEAR 2003 -04 AND THE ASSESSEE WAS ALLOWED DEPRECIATION FOR THE ASSES SMENT YEAR 2002-03. THE REVENUE HAS NOT ADDUCED ANY EVIDENCE CONTROVERTING THE FACTUAL FINDING MENTIONED IN THE IMPUGNED 11 ORDER, THEREFORE, THE DISALLOWANCE IS DESIRABLE IN THE IMPUGNED APPEAL. EVEN OTHERWISE ON THE TAX EFFECT THIS APPE AL OF THE REVENUE IS LIABLE TO BE DISMISSED. THIS VIEW FINDS SUPPORT FROM THE DECISION OF THE TRIBUNAL IN THE CASE OF R.K. HO TELS (ITA NO.383/IND/09). THE RELEVANT PORTION OF THE ORDER I S REPRODUCED HEREUNDER :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER O F LD. CIT-(A)-II, BHOPAL, DATED 31.3.2009 FOR THE AY 2005- 06 ON THE GROUND THAT THE LD. FIRST APPELLATE AUTHO RITY ERRED IN DELETING THE ADDITION OF 6,37,206/- MADE B Y THE AO BY APPLYING THE PROVISIONS OF SEC. 154(3) ON ACC OUNT OF INCORRECTNESS AND INCOMPLETENESS OF BOOKS OF ACCOUNT.. 2. DURING HEARING OF THE APPEAL, WE HAVE HEARD SMT. APARNA KARAN, LD. SR. DR AND SHRI H.P. VERMA ALONG WITH SHRI ASHISH GOYAL, LD. COUNSEL FOR ASSESSEE. AT THE OUTSET, IT WAS POINTED OUT THAT THERE IS TYPOGRAPHI CAL ERROR IN MENTIONING THE FIGURE OF RS.6,37,206/- IN THE GROUND OF APPEAL AS THE CORRECT FIGURE IS RS.3,94,7 32/-. THE ASSERTION OF THE ASSESSEE WAS CONSENTED TO BE CORRECT BY THE LD. SR. DR. FURTHER, IT WAS POINTED OUT THAT THE TAX EFFECT IS ALSO BELOW MONETARY LIMIT, THEREF ORE, THE APPEAL OF THE REVENUE MAY BE DISMISSED. THE LD. SR. DR FAIRLY AGREED TO THE SUBMISSION OF THE ASSESSEE TO THE EXTENT THAT THE TAX EFFECT IS BELOW PRESCRIBED MONE TARY LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL. S.NO. AUTHORITY MONETARY LIMIT (IN RS.) 1 ITAT 2,00,000/- 2 APPEAL UNDER SECTION 260A BEFORE HIGH COURT 4,00,000/- 3 SUPREME COURT 10,00,000/- THE BOARD FURTHER CLARIFIED THE TAX EFFECT, WHICH M EANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABL E, HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS INTENDED TO BE FILED. HOWEVER, THE TAX WILL NOT I NCLUDE 12 ANY INTEREST THEREON. IN CASES OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDU CED IN THE ORDER TO BE APPEALED AGAINST. IN THE PRESE NT APPEAL, THE TOTAL DISPUTED ADDITION IS RS.3,94,732 /-, THEREFORE, AS AGREED/CANVASSED BY LD. REPRESENTATIV ES FROM BOTH SIDES, THE TAX EFFECT IS BELOW RS.2 LAKHS , THE LIMIT PRESCRIBED FOR FILING APPEAL BEFORE THE TRIBU NAL, THEREFORE, APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OUR VIEW FINDS SUPPORT FROM THE DECISIO N OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASES O F SHRI J.S. LUTHRA (ITA NO.712 TO 715/CHD/2009) AND ITO, WARD 2(2), ROPAR VS. THE JHALLIAN KALAN PRI. COOP M ILK PRODUCE SOCIETY LTD., JHALLIAN KALAN DISTT. ROPAR ( ITA NO.721/CHD/2009). THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CASE, FACTS AND THE JUDICIAL PRONOUNC EMENTS (SUPRA), THIS APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES ON 6.10.2009. IN THE LIGHT OF THE ABOVE, THIS GROUND OF THE REVEN UE IS HAVING NO MERIT, THEREFORE, THE STAND OF THE LEARNED CIT(A ) IS AFFIRMED CONSEQENTLY, THIS GROUND OF THE REVENUE IS DISMISSE D. 4. THE NEXT GROUND RAISED IS THAT THE LEARNED FIRST APPELLATE AUTHORITY ERRED IN DIRECTING THE ASSESSIN G OFFICER TO ALLOW CARRY FORWARD OF BROUGHT FORWARD LOSSES OF EA RLIER YEARS WITHOUT ANY BASIS. THE CONTENTION RAISED ON BEHALF OF THE REVENUE IS THAT IN COMING TO A PARTICULAR CONCLUSIO N, NO BASIS HAS BEEN ADDUCED BY THE LEARNED FIRST APPELLATE AUT HORITY AND IT WAS RIGHTLY DISALLOWED BY THE ASSESSING OFFICER IN THE ABSENCE OF PROOF FURNISHED BY THE ASSESSEE. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. THE STAND OF THE REV ENUE IS THAT PROOF OF LAST YEARS LOSSES WAS NOT FURNISHED BY TH E ASSESSEE CONSEQUENTLY THESE ARE NOT ALLOWABLE WHEREAS BEFORE THE LEARNED FIRST APPELLATE AUTHORITY THERE IS A FACTUA L FINDING THAT IN ALL PREVIOUS YEARS RETURNS WERE DULY FILED BY T HE ASSESSEE AND THE SAME WERE AVAILABLE ON RECORD OF THE ASSESS ING OFFICER. IN THE IMPUGNED ORDER THE LEARNED FIRST AP PELLATE AUTHORITY HAS DIRECTED THE ASSESSING OFFICER TO ALL OW CARRY FORWARD OF BROUGHT FORWARD LOSSES OF EARLIER YEARS WHICH WERE NOT SET OFF AFTER VERIFICATION OF RECORDS OF EARLIE R YEARS. EVEN OTHERWISE, IT IS A CASE OF ASSESSED LOSS WHICH HAS NOT BEEN SET OFF. CONSEQUENTLY, WE ARE IN AGREEMENT THAT IN VIE W OF THE PROVISIONS OF SECTION 72 IT SHOULD BE ALLOWED. CON SEQUENTLY, THERE IS NO GRIEVANCE TO THE REVENUE SINCE IT HAS B EEN 13 REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO DO THE NEEDFUL AFTER VERIFICATION OF RECORDS OF EARLIER YE ARS. MY VIEW FINDS SUPPORT FROM THE RATIO LAID DOWN IN CIT V. J. H. GOTLA; 156 ITR 323 (SC); TARA DEVI BEHL V. CIT; 218 ITR 541 ( P&H). THE HONBLE APEX COURT IN THE CASE OF CIT V. MAHALAXMI SUGAR MILLS CO. LTD.; 160 ITR 920 EVEN WENT TO THE EXTENT THAT ITO MUST ALLOW SET OFF EVEN IF IT IS NOT CLAIMED BY THE ASSE SSEE BECAUSE A DUTY IS CAST UPON THE ITO TO APPLY THE RELEVANT PRO VISIONS OF THE INDIAN INCOMETAX ACT FOR THE PURPOSE OF DETERMI NING THE TRUE FIGURE OF ASSESSEES TAXABLE INCOME AND THE CO NSEQUENTIAL TAX LIABILITY. MERELY BECAUSE THE ASSESSEE FAILS TO CLAIM THE BENEFIT OF SET OFF CANNOT RELIEVE THE ITO OF HIS DU TY TO APPLY SECTION 72 IN AN APPROPRIATE CASE. IN VIEW OF THES E FACTS AND JUDICIAL PRONOUNCEMENTS, I HAVE FOUND NO INFIRMITY IN THE IMPUGNED ORDER, CONSEQUENTLY, THIS GROUND OF THE RE VENUE ALSO FAILS. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF HEARING ON 1. 12.2009. IN THE AFORESAID CASE, THE TRIBUNAL HAS PASSED A DE TAILED ORDER, THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CAS E AND RESPECTFULLY FOLLOWING THE AFORESAID DECISION, THIS APPEAL OF TH E REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON 26 TH MAY, 2010. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 28.10.2010. 4. HOWEVER, THE CBDT VIDE INSTRUCTION NO.3/2011 DAT ED 9.2.2011 REVISED/RAISED THE MONETARY LIMIT FOR FILI NG THE APPEAL BY THE DEPARTMENT AS UNDER: S.NO. AUTHORITY MONETARY LIMIT (IN RS.) 1 ITAT 3,00,000/- 2 APPEAL UNDER SECTION 10,00,000/- 14 260A BEFORE HIGH COURT 3 SUPREME COURT 25,00,000/- THE ABOVE INSTRUCTIONS ARE APPLICABLE TO THE APPEAL S FILED ON OR AFTER 9.2.2011, ISSUED U/S 268A(1) OF THE I.T. ACT, 1961. AS FAR AS THE MERIT OF THE CASE IS CONCERNED, IT HAS ALREA DY BEEN EXAMINED BY THE LD. CIT(A) BY KEEPING THE PROVISION S OF SEC. 275(1)(A) OF THE ACT. SINCE THE APPEAL OF THE ASSES SEE WAS DECIDED BY THE LD. CIT(A) VIDE ORDER DATED 4.11.200 4, CONSEQUENTLY, THE PENALTY PROCEEDINGS WERE SUPPOSED TO BE DISPOSED OF BY 31.3.2006 WHEREAS THE SAME WAS DECID ED VIDE ORDER DATED 22.4.2009. IN VIEW OF THIS FACT, THE OR DER WAS RIGHTLY QUASHED, CONSEQUENTLY, WE FIND NO INFIRMITY IN THE STAND OF THE LD. CIT(A). THE SAME IS UPHELD. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 31.5.2011. IDENTICALLY THE BENCH IN THE CASE OF VINOD BANSAL, ITA NO. 275/IND/2010 VIDE ORDER DATED 22.6.2011 DISMISSED THE APPEAL OF THE REVENUE ON THE ISSUE OF TAX EFFECT. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. ASHOK KUMAR MANIBHAI & COMPANY (2009) 317 ITR 386 HELD AS UNDER :- THIS COURT CAN VERY WELL TAKE JUDICIAL NOTICE OF T HE FACT THAT BY PASSAGE OF TIME MONEY VALUE HAS GONE DOWN, THE COST OF LITIGATION EXPENSES HAS GONE UP, THE ASSESS EE ON THE FILE OF THE DEPARTMENT HAVE BEEN INCREASED CONSEQUE NTLY, THE BURDEN ON THE DEPARTMENT HAS ALSO INCREASED TO A TREMENDOUS EXTENT. THE CORRIDORS OF THE SUPERIOR CO URTS ARE CHOKED WITH HUGE PENDENCY OF CASES. IN THIS VIEW O F THE MATTER, THE BOARD HAS RIGHTLY TAKEN A DECISION NOT TO FILE REFERENCES IF THE TAX EFFECT LESS THAN RS. 2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN OUR VIEW, THE BOARDS CIRCULAR DATE D MARCH 27, 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD RE FERENCES WHICH ARE STILL UNDECIDED. THE DEPARTMENT IS NOT J USTIFIED IN PROCEEDING WITH THE OLD REFERENCE WHEREIN THE TA X IMPACT IS MINIMAL. THUS, THERE IS NO JUSTIFICATION TO PROC EED WITH DECADES OLD REFERENCES HAVING NEGLIGIBLE TAX EFFECT . 15 4. VIDE BOARD INSTRUCTION NO. 5/2008 DATED 15.5.2008 THE MONETARY LIMIT AND OTHER CONDITIONS FOR FILING THE APPEAL OF THE DEPARTMENT (IN INCOME TAX MATTERS) BEFORE THE APPELLATE TRIBUNAL, HIGH COURT AND SUPREME COURT WAS SPECIFIED. HOWEVER, IN SUPPRESSION OF THESE INSTRUCTIONS, VIDE INSTRUCTION NO. 3/2011 DATED 9.2.2011 THE BOARD INCREASED THE MONETARY LIMIT AS DISCUSSED ABOVE (TABLE). THE TRIBUNAL (MUMBAI BENCH) IN THE CASE OF M/S LAXMI J. JEWEL PRIVATE LIMITED (ITA NO. 2165/MUM/2010) BY FOLLOWING THE DECISION IN THE CASE OF HONBLE BOMBAY HIGH COURT IN CIT V. MADHUKAR K. INAMDAR (HUF) WHEREIN IT WAS HELD THAT THE CIRCULAR WILL BE APPLICABLE TO THE CASES PENDING BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL AND HELD THAT INSTRUCTION NO. 3 DATED 9.2.2011 IS APPLICABLE FOR THE APPEAL PREFERRED BY THE REVENUE AND DISMISSED THE SAME ON TAX EFFECT BY FURTHER CONSIDERING THE DECISION IN THE CASE OF LIVING STONES JEWELLERY PRIVATE LIMITED VS. DCIT; 31 SOT 323. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS, WE DISMISS THE APPEAL OF THE REVENUE ON THE ISSUE OF TAX EFFECT/MONETARY LIMIT. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 30 TH JUNE, 2011 . WE FIND FROM THE RECORD THAT ITA NO.87/IND/2011, 88/IND/2011, 617/IND/2010, 104/IND/2011, 524/IND/2010, 598/IND/2010, 599/IND/2010, 620/IND/2010, 556/IND/2010 & IT(SS)A NO.26/IND/2011 ARE HAVING TAX EFFECT BELOW RS.2 LAC S 16 AND REMAINING THREE APPEALS I.E. ITA NO.480/IND/201 0, 102/IND/2011 & 571/IND/2010 ARE HAVING TAX EFFECT MORE THAN RS.2 LACS BUT BELOW RS.3 LACS. SO FAR AS THE APPEALS HAVING TAX EFFECT BELOW RS.2 LACS ARE CONCE RNED, SAME ARE DISMISSED BEING NOT MAINTAINABLE AS PER EA RLIER CIRCULAR NO.5/2008 DATED 15.5.2008 OF CBDT WHEREAS WITH REGARD TO THREE APPEALS HAVING TAX EFFECT MORE THAN RS.2 LACS BUT LESS THAN RS.3 LACS ARE CONCERNED, WE FIND THAT THESE APPEALS ARE ALSO LIABLE TO BE DISMISSED BEING NOT MAINTAINABLE BY FOLLOWING THE DECISION OF MUMBA I BENCH IN THE CASE OF LAXMI JEWELS P. LTD. ORDER DAT ED 12.4.2011 ITA NO.2165/MUM/2010. THIS ORDER OF THE MUMBAI BENCH HAS BEEN SUBSEQUENTLY FOLLOWED IN THE CASE OF M/S. INDIA SAFETY VAULTS LTD., ORDER DATED 29.4.2011 IN ITA NO.648 TO 651/MUM/2010. WE HAVE CAREFULLY GONE THROUGH THE DECISION OF THE COORDINA TE BENCH WHEREIN AFTER FOLLOWING THE DECISION OF HONB LE BOMBAY HIGH COURT IN THE CASE OF MADHUKAR K. INAMDA R HUF, IT WAS HELD THAT CIRCULAR WILL BE APPLICABLE T O THE 17 CASE PENDING BEFORE COURT EITHER FOR ADMISSION OR F OR FINAL DISPOSAL. IN THE CASE OF NATHULAL JAIN (SUPRA), THE TRIBUNAL HAS PASSED A DETAILED ORDER, THEREFORE, WI THOUT GOING INTO THE MERITS OF THE RESPECTIVE CASES AND RESPECTFULLY FOLLOWING THE AFORESAID DECISION, ALL THE PRESENT APPEALS OF THE REVENUE ARE DISMISSED BEING TAX EFFECT BELOW PRESCRIBED LIMIT. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUS ION OF THE HEARING ON 30.6.2011. (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH JUNE, 2011 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE !VYS!