ADIT, Dehradun V. Veco Canada Ltd., Dehradun

ITA 1139/DEL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7754 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 31-05-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 05-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATHI
• Assessee Lawyers: S D KAPILA; R R MAURYA
• Keywords: Tax effect
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 1139/DEL/2012 ASSESSMENT YEAR: 2005-06 ADIT (INTERNATIONAL TAXATION), VS. M/S VECO CANADA LTD., 13-A, SUBHASH ROAD, C/O HEMANT ARORA & CO., CA AAYAKAR BHAWAN, 1 TYAGI ROAD, DEHRADUN-248001 DEHRADUN -248001 / 1200, 401-9 TH AVE, S.W. CALGARY, ALBERTO, CANADA- T2P3C5 (PAN: AABCV9570) ( APPELLANT) (RESPONDENT) APPELLANT BY : SH. S.R. SENAPATHI, SR. DR RESPONDENT BY : SH. SD KAPILA & SH. RR MAU RYA, ADV. DATE OF HEARING : 31-05-2016 DATE OF ORDER : 01-06-2016 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST T HE ORDER DATED 16.12.2011 OF LD. CIT(A)-II, NEW DELHI PERTAINING T O ASSESSMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS:- 1. WHETHER THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEE WAS NOT LIA BLE TO PAY ADVANCE TAX IN TERMS OF PROVISIONS OF PART C OF CHA PTER XVII OF THE INCOME TAX ACT, 1961. ITA NO.1139/DEL/2012 2 2. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEE WAS NOT LIAB LE TO PAY INTEREST UNDER SECTION 234B DESPITE THE FACT THAT C HARGEABLITY OF THE INTEREST IS MANDATORY FOR NOT COMPLYING WITH THE PROVISIONS OF SECTION 210. 3. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) HAD ERRED IN DELETING THE INTEREST CHARGED UNDER SE CTION 234B BY RELYING UPON THE DECISION OF THE HONBLE UTTARAK HAND HIGH COURT IN THE CASE OF MAERKS CO. LTD. DESPITE THE FA CT THAT THE DEPARTMENT HAS NOT ACCEPTED THIS FINDING IN OTHER C ASES INVOLVING SIMILAR ISSUES AND HAS FILED SLP BEFORE A PEX COURT IN THE CASE OF JACOBS CIVIL INCORPORATED, MITSUBISH I AND OTHERS (DELHI.) 4. THE APPELLANT PRAYS FOR LEAVE TO ADD, AMEND, MODIF Y OR ALTER ANY GROUNDS OF APPEAL AT THE TIME OF BEFORE THE HE ARING OF THE APPEAL. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. FROM THE ABOVE, WE FIND THAT THE TAX EFFEC T IN THE REVENUES APPEAL IS LESS THAN RS.10,00,000/-, THEREFORE, THE DEPARTMENTS APPEAL IS NOT MAINTAINABLE, IN VIEW OF THE CIRCULAR NO. 2 1/2015 DATED 10 TH DECEMBER, 2015 ISSUED VIDE F.NO. 279/MISC. 142/2007 -ITJ (PT.) BY THE CBDT. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PA RA NOS. 3 & 10 OF THE AFORESAID CBDTS CIRCULAR ARE REPRODUCED AS UNDER:- ITA NO.1139/DEL/2012 3 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY L IMITS GIVEN HEREUNDER: S 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 MONETA RY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 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 PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTI ONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEA L WAS FILED. 3. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORI TIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHDRAWN/ NOT PRESSED THE P RESENT APPEAL, IN VIEW OF THE AFORESAID INSTRUCTIONS SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN THE AMOUNT OF RS. 10 LACS, PRESCRIBED IN THE ABOVE SAID CBDTS INSTRUCTIONS. ITA NO.1139/DEL/2012 4 4. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HA VE WITHDRAWN/ NOT PRESSED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WE ARE ALS O OF THE VIEW THAT THE SAID INSTRUCTIONS ARE APPLICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/06/2016. SD/- SD/- (O.P. KANT) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 01/06/2016 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR