I.T.O Wd - 8(3),kolkata, Kolkata V. M/s Parasnath Crusher Pvt Ltd, Kolkata

ITA 1022/KOL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3225 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 30-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD JCIT SRDR
• Assessee Lawyers: VARSHA JALAN
• Keywords: Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI N.V.VASUSDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1022 / KOL / 2013 ASSESSMENT YEAR :2009-10 ITO, WARD-8(3), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQ., 5 TH FLOOR, ROOM NO.5/17, KOLKATA-700 069 V/S . M/S PARASNATH CRUSHER PVT. LTD., 46, RAFI AHMED KIDWAI ROAD, KOLKATA-700 016 [ PAN NO.AADCP 4536 E ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI RAJENDRA PRASAD, JCIT-SR-DR /BY RESPONDENT MISS. VARSHA JALAN, ADVOCATE /DATE OF HEARING 09-02-2016 /DATE OF PRONOUNCEMENT 09-02-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-VIII, KOLKATA IN APPEAL NO.216 /CIT(A)-VIII/KOL/11-12 DATED 08.01.2013. ASSESSMENT WAS FRAMED BY ITO WARD -8(3), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE HIS ORDER DATED 16.12.2011 FOR ASSESSMENT YEAR 2009 -10. ITA NO.1022/KOL/2013 A.Y. 2009-10 ITO WD-8(3) KOL. V. M/S PARASNATH CRUSH ER PVT. LTD. PAG E 2 MISS. VARSHA JALAN, LD. AUTHORIZED REPRESENTATIVE A PPEARING ON BEHALF OF ASSESSEE AND SHRI RAJENDRA PRASAD, LD. DEPARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. 2. AT THE THRESHOLD, IT IS NOTED THAT THERE IS A SM ALLNESS DELAY OF THREE DAYS IN FILING THE APPEAL BY THE REVENUE. THE REVENUE HA S FILED CONDONATION PETITION IN THIS REGARD STATED THE REASONS THAT THE DELAY IS OCCURRED DUE TO UNAVOIDABLE CIRCUMSTANCES. LD. AR FOR ASSESSEE HAS RAISED NO OBJECTION. IN OUR CONSIDERED OPINION, DUE TO SMALLNESS OF DELAY I S HEREBY CONDONED AND PROCEED TO HEARING THIS APPEAL. 3. OF LATE, THE CBDT HAS ISSUED CIRCULAR NO. 21/2015 , 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 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 ITA NO.1022/KOL/2013 A.Y. 2009-10 ITO WD-8(3) KOL. V. M/S PARASNATH CRUSH ER PVT. LTD. PAG E 3 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. 4. 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. 4. 1 IN BOTH THE PRESENT CASE, THE TAX EFFECT IN TH IS APPEAL BY THE REVENUE IS LESS THAN RS.10,00,000/-. THOUGH BOTH APPEALS HAD BEEN FILED BY THE REVENUE ON 15.06.2011 AND WERE WITHIN THE MONETARY LIMIT IN THE FORM 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 AB OVE. 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 ITA NO.1022/KOL/2013 A.Y. 2009-10 ITO WD-8(3) KOL. V. M/S PARASNATH CRUSH ER PVT. LTD. PAG E 4 OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT CIRCULA R NO.21/2015. 6. IN VIEW OF THE ABOVE, WE HOLD THAT BOTH APPEALS FILED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDER OF THE LD. C IT(A), ARE CONTRARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH APPE AL FILED BY THE DEPARTMENT IS DISMISSED IN LIMINE . 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT 09 /02/2016 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 09 / 02 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-8(3), AAYAKAR BHAWAN, P7, CHOWR INGHEE SQ., 5 TH FLOOR ROOM NO.5/17, K OLKATA-700 069 2. /RESPONDENT-M/S PARASNATH CRUSHER PVT. LTD. 46, RAF I AHMED KIDWAI ROAD, KOL-16 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,