DCIT, Circle - 3, Kolkata, Kolkata V. M/s. Himgiri Casting (P) Ltd, Kolkata

ITA 11/KOL/2010

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4544 (ITAT-KOLKATA)
• Duration Of Justice: 8 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 01-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SHRI ABY. T. VARKEY, JM & SHRI M. BALAGANESH, AM ] I.T.A NO. 11/KOL/2010 ASSESSMENT YEAR : 2001-0 2 DCIT, CIRCLE-3, KOLKATA -VS- M/S HIMGIRI CAST ING PVT. LTD. [PAN: AAACH 7559 J ] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SALLONG YADEN, AD DL. CIT, SR. DR FOR THE RESPONDENT : SHRI ARVIND AGARWAL, ADV OCATE DATE OF HEARING : 12.07.2018 DATE OF PRONOUNCEMENT : 01.08.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE REVENUE ARISES OUT OF THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-1, KOLKATA [IN SHORT THE LD CIT (A)] IN APPEAL NO. 209/CIT(A)- 1/CIR-3/08-09 DATED 30.10.2009 AGAINST THE ORDER P ASSED BY THE DCIT, CIRCLE-3, KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 08.12.2008 FOR THE ASSESSM ENT YEAR 2001-02. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN CONSIDERING THE AMOUNT OF SALES PROCEE DS FROM DEPB LICENSE AMOUNTING TO 2 ITA NO.11/KOL/2010 M/S HIMGIRI CASTING PVT. LTD. A.YR.2001-02 2 RS. 1,80,90,962/- FOR THE PURPOSE OF COMPUTING DEDU CTION U/S 80IB OF THE ACT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. WE FIND AT THE OUTSET THERE IS NO DISPUTE THAT T HE ASSESSEE IS AN INDUSTRIAL UNDERTAKING ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT. THE ASS ESSEE HAD CLAIMED DEDUCTION OF RS. 15,88,628/- U/S 80IB OF THE ACT IN THE RETURN OF IN COME, AFTER CONSIDERING THE SALE PROCEEDS OF DEPB LICENSE AMOUNT OF RS. 1,80,90,962/ - AS AN ITEM ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT. WE FIND THAT SHORT DISPUTE TO BE ADJUDICATED IN THIS APPEAL IS AS TO WHETHER THIS SALE PROCEEDS OF DEPB LICENSE AMOUNT O F RS. 1,80,90,962/- WOULD BE ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT. THE LD. CIT(A) HAD GRANTED RELIEF TO THE ASSESSEE IN THIS REGARD. WE FIND THAT THE QUANTUM O F TAX EFFECT ON THE DISPUTE AGITATED BY THE REVENUE IS LESS THAN RS. 20,00,000/-. 4. RECENTLY THE CBDT HAS ISSUED CIRCULAR NO. 3 /2018 DATED 11.07.2018, WHEREBY THE MONETARY LIMITS FOR FILING OF APPEALS BY THE D EPARTMENT 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 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 HEREUNDER: SL. NO. APPEALS/SLPS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS) 1. BEFORE APPELLATE TRIBUNAL 20,00,000/- 2. BEFORE HIGH COURT 50,00,000/- 3. BEFORE SUPREME COURT 1,00,00,000/- 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 CHARGEABL E HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE I SSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'D ISPUTED ISSUES). FURTHER, 'TAX EFFECT' 3 ITA NO.11/KOL/2010 M/S HIMGIRI CASTING PVT. LTD. A.YR.2001-02 3 SHALL BE TAX INCLUDING APPLICABLE SURCHARGE AND CES S. 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 THE ISSUE UNDER DI SPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS RED UCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDIT IONS. 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-13 OF THE SAID CIRCULAR IT HAS FURTHER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RE LEVANT PARA-13 OF THE CIRCULAR READS THUS: 13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APP LY RETROSPECTIVELY TO PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. PENDING A PPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED . 4. IN THE PRESENT CASE, THE TAX EFFECT IN THIS AP PEAL BY THE REVENUE IS LESS THAN RS.20,00,000/-. THOUGH THIS APPEAL HAD BEEN FILED BY THE REVENUE ON 01.01.2010 AND WAS WITHIN THE MONETARY LIMIT IN THE FORM OF TAX EF FECT FOR FILING APPEALS BEFORE TRIBUNAL, IN VIEW OF PARA-13 OF THE CIRCULAR OF CBD T, EVEN SUCH APPEALS WILL BE GOVERNED BY THE NEW MONETARY LIMITS LAID DOWN IN TH E CBDT CIRCULAR NO.3/2018 REFERRED TO ABOVE. 5. IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX COURT IN T HE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATION LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF THE APE X COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THAT WHEN A CI RCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUND BY IT AND CANNO T BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY TO THE TERMS OF THE ST ATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUE D BY THE CBDT CIRCULAR NO.3 DATED 11.07.2018. 4 ITA NO.11/KOL/2010 M/S HIMGIRI CASTING PVT. LTD. A.YR.2001-02 4 5.1. IN THE EVENT, THE REVENUE FINDS AT A LATER POI NT OF TIME THAT THE TAX EFFECT IN THE APPEAL IS MORE THAN RS.20 LAKHS OR DESPITE LOW TAX EFFECT THE APPEAL OF THE REVENUE IS MAINTAINABLE, THE REVENUE IS AT LIBERTY TO MOVE TH IS TRIBUNAL FOR RECALLING OF THIS ORDER. 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 CONTRARY T O THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE . 7. IN THE RESULT, THE APPEAL BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE COURT ON 01.08.2 018 SD/- SD/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 01.08.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. DCIT, CIRCLE-3, KOLKATA, 8/2, ESPLANADE EAST, KO LKATA-700069. 2. M/S HIMGIRI CASTING PVT. LTD., ALPHANO ESTATE, 3 RD FLOOR, 5, SURENDRA MOHAN GHOSH SARANI, KOLKATA-1. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S