ITO, Central, Aurangabad V. Shri Popatlal Mohanlal Chordiya, Aurangabad

ITA 1219/PUN/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2962 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-01-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 28-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Keywords: Tax effect
• Section: 143(3); 153A; 12A

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , !, # $ BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NOS.1217 TO 1223/PN/2011 ASSESSMENT YEARS : 2000-01 TO 2006-07 THE INCOME TAX OFFICER, CENTRAL, AURANGABAD. . APPELLANT VS. SHRI POPATLAL MOHANLAL CHORDIYA, 10, AHINSANAGAR, OPP. AKASHWANI, JALNA ROAD, AURANGABAD 431 001. PAN : AAHPC1004H . RESPONDENT CO NOS.82 TO 88/PN/2011 (ARISING OUT OF ITA NOS.1217 TO 1223/PN/2011) ASSESSMENT YEARS : 2000-01 TO 2006-07 SHRI POPATLAL MOHANLAL CHORDIYA, 10, AHINSANAGAR, OPP. AKASHWANI, JALNA ROAD, AURANGABAD 431 001. PAN : AAHPC1004H . CROSS OBJECTOR VS. THE INCOME TAX OFFICER, CENTRAL, AURANGABAD. . RESPONDENT DEPARTMENT BY : SHRI S.K. RASTOGI, CIT ASSESSEE BY : SHRI SUNIL GANOO / DATE OF HEARING : 05.01.2016 / DATE OF PRONOUNCEMENT: 06.01.2016 % / ORDER PER SUSHMA CHOWLA, JM : THIS BUNCH OF SEVEN APPEALS FILED BY THE REVENUE AR E AGAINST THE CONSOLIDATED ORDER OF CIT(A), AURANGABAD, DATED 07. 07.2011 RELATING TO ASSESSMENT YEARS 2000-01 TO 2006-07 AGAINST SEPARAT E ORDERS PASSED UNDER 2 ITA NOS.1217 TO 1223/PN/2011 CO NOS.82 TO 88/PN/2011 SECTION 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1 961 (IN SHORT THE ACT). THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS AGAINST TH E RESPECTIVE APPEALS OF THE REVENUE RELATING TO ASSESSMENT YEARS 2000-01 TO 200 6-07. 2. ALL THE APPEALS OF THE REVENUE RELATING TO THE S AME ASSESSEE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE WERE HEARD TOGETHE R AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 3. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE POINTED OUT THAT THOUGH THE PRESENT APPEALS FILED BY THE REVENUE RELATING T O ASSESSMENT YEARS 2000-01 TO 2005-06 WERE AGAINST THE CONSOLIDATED ORDER OF THE CIT(A) BUT THE TAX EFFECT IN EACH OF THE APPEALS WAS BELOW THE LIMIT OF RS.10 LAKHS A ND CONSEQUENTLY THE APPEALS FILED BY THE REVENUE ARE TO BE DISMISSED, IN VIEW O F CBDTS CIRCULAR NO.21/2015, DATED 10.12.2015, WHERE IT HAS BEEN ANNOUNCED THAT SUBJECT TO CERTAIN INSTRUCTIONS, WHICH ARE NOT RELEVANT TO THE PRESENT CASE, NO DEPA RTMENTAL APPEAL WOULD BE FILED AGAINST THE RELIEF GIVEN BY THE CIT(A) BEFORE THE T RIBUNAL, UNLESS THE TAX EFFECT EXCLUDING INTEREST EXCEEDS RS.10 LAKHS. IT IS FURT HER PROVIDED VIDE THE SAID CIRCULAR ITSELF THAT THE SAID LIMIT WOULD BE APPLICABLE NOT ONLY TO ALL FUTURE TAX LITIGATIONS BUT EVEN TO THE PENDING APPEALS WHERE THE TAX INVOLVED IN THE APPEALS DOES NOT EXCEED RS.10 LAKHS AND THE SAME SHALL NOT BE PRESSED OR WI THDRAWN. 4. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE REFERRED TO THE ORDER OF THE CIT(A) IN WHICH TABULATED DETAILS OF ADDITIONS MADE IN THE CASE OF THE ASSESSEE ARE PROVIDED AT PAGE 2 OF THE APPELLATE ORDER AND A LSO REFERRED TO THE CHART PREPARED BY THE ASSESSEE IN POINTING OUT THE YEAR-W ISE DELETION OF ADDITIONS DIRECTED BY THE CIT(A), AGAINST WHICH THE REVENUE I S IN APPEAL. 3 ITA NOS.1217 TO 1223/PN/2011 CO NOS.82 TO 88/PN/2011 5. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE ALSO POINTED OUT THAT THE CROSS OBJECTIONS HAVE BEEN FILED BY THE ASSESSEE ON DIFFERENT ISSUES, HOWEVER, DURING THE COURSE OF HEARING THE CROSS OBJECTIONS F ILED BY THE ASSESSEE WERE WITHDRAWN. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FAIRLY AGREED TO THE CONTENTION RAISED BY THE LEARNED AUTHORIZED REP RESENTATIVE FOR THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEALS IS IN RELATION TO TH E ADDITION, WHEREIN THE TAX EFFECT IS LESS THAN RS.10 LAKHS. IN THIS BACKGROUND, WE HAVE TO CONSIDER THE CIRCULAR NO.21/2015 DATED 10.12.2015 OF CBDT. THE CBDT VIDE THE SAID CIRCULAR HAS ANNOUNCED THAT SUBJECT TO CERTAIN EXCEPTIONS, NO DE PARTMENTAL APPEAL WOULD BE FILED AGAINST THE RELIEF GIVEN BY THE CIT(A) BEFORE THE TRIBUNAL, WHERE THE TAX EFFECT EXCLUDING INTEREST DOES NOT EXCEED RS.10 LAKHS. TH E SAID INSTRUCTIONS ARE MADE APPLICABLE NOT ONLY TO THE FUTURE APPEALS TO BE FIL ED BY THE REVENUE BUT EVEN TO THE PENDING APPEALS WHERE THE TAX INVOLVED IN EACH OF T HE APPEAL DOES NOT EXCEED RS.10 LAKHS, THE SAME ARE INSTRUCTED NOT TO BE PRES SED OR TO BE WITHDRAWN BY THE REVENUE. IN VIEW THEREOF, WHERE AN APPEAL IS PENDI NG BEFORE THE TRIBUNAL, IRRESPECTIVE OF THE YEAR TO WHICH IT RELATES, THE S AID INSTRUCTIONS OF THE CBDT WOULD BE APPLICABLE AND THE APPEALS OF THE REVENUE PENDIN G BEFORE THE TRIBUNAL WHERE THE TAX EFFECT IS LESS THAN RS.10 LAKHS WOULD BECOM E NULLITY. THE RELEVANT EXTRACT OF THE CIRCULAR IS AS UNDER:- 3. HENCEFORTH, APPEALS/SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN UNDER:- 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/- 4 ITA NOS.1217 TO 1223/PN/2011 CO NOS.82 TO 88/PN/2011 IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED 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 B EEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESP ECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER R EFERRED TO AS DISPUTED ISSUES). HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THER EON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEA BILITY 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 WO ULD 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 APPEA LED AGAINST. 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EF FECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES I N THE CASE OF EVERY ASSESSMENT. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL, CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN R ESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONE TARY LIMIT SPECIFIED IN PARA 3. IN OTHER WORDS, HENCEFORTH, APPEALS CAN BE FILED ONLY WITH REFERENCE TO THE TAX EFFECT IN THE RELEVANT ASSESSMENT YEAR. HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OF APPELLATE AUTHORITY, WHICH INVOLVES MORE T HAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, APP EAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFEC T IS LESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S), IF IT IS DEC IDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED. IN CASE WHERE A COMPOSITE ORDER / JUDGMENT INVOLVES MORE THAN ONE A SSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY. 8. THE CBDT HAS FURTHER CLARIFIED THAT IN CASE THE DISPUTED ISSUE ARISES IN MORE THAN ONE ASSESSMENT YEAR, THEN THE APPEAL CAN BE FI LED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUE EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3 I.E. RS.10 LAKHS BEFORE THE TRIBUNAL. IT IS FURTHER DIRECTED THAT HENCEFORTH, THE APPEALS CAN BE FILED BY THE REVENUE ONLY WITH REFERENCE TO THE TAX EFFECT IN THE RELEVANT AS SESSMENT YEAR. HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY, WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, THEN APPEAL SHALL BE FILED IN RESPECT OF SUCH ASSES SMENT YEAR, EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S), IF IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED. WHERE A COMPOSITE ORDER / JUDGMENT INV OLVES MORE THAN ONE 5 ITA NOS.1217 TO 1223/PN/2011 CO NOS.82 TO 88/PN/2011 ASSESSEE, THEN EACH ASSESSEE SHALL BE DEALT WITH SE PARATELY. IT IS ALSO PROVIDED FURTHER VIDE PARA 6 THAT WHERE THE APPEAL BEFORE TH E TRIBUNAL WAS NOT FILED ONLY ON ACCOUNT OF TAX EFFECT BEING LESS THAN SPECIFIED MON ETARY LIMIT, THEN THE INCOME-TAX DEPARTMENT SHALL NOT BE PRECLUDED FROM FILING AN AP PEAL AGAINST THE DISPUTED ISSUES IN THE CASE OF THE SAME ASSESSEE FOR ANY OTHER ASSE SSMENT YEAR, OR IN CASE OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR, IF THE TAX EFFECT EXCEEDS THE SPECIFIED MONETARY LIMITS. THE CBDT HA S FURTHER VIDE PARA 8 SPECIFIED THE ISSUE WHICH SHOULD BE CONTESTED ON MERITS NOTWI THSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED . FURTHER, THE SPECIFIED MONETARY LIMITS AS PER PARA 9 WOULD NOT APPLY TO WRIT MATTER S AND DIRECT TAX MATTERS OTHER THAN INCOME TAX AND ALSO IS NOT APPLICABLE TO THE APPEAL S WHERE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUCH AS THE CASE OF R EGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE ACT. IN SUCH CASES, THE D ECISION TO FILE AN APPEAL IS TO BE TAKEN ON THE MERITS OF A PARTICULARS CASE. THE PAR AS 6 TO 9 OF THE CIRCULAR READ AS UNDER:- 6. IN A CASE WHERE APPEAL BEFORE A TRIBUNAL OR A C OURT IS NOT FILED ONLY ON ACCOUNT OF THE TAX EFFECT BEING LESS THAN THE MONET ARY LIMIT SPECIFIED ABOVE, THE COMMISSIONER OF INCOME-TAX SHALL SPECIFICALLY RECOR D THAT EVEN THOUGH THE DECISION IS NOT ACCEPTABLE, APPEAL IS NOT BEING FILED ONLY O N THE CONSIDERATION THAT THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN THIS INSTRUCTION. IN SUCH CASES, THERE WILL BE NO PRESUMPTION THAT THE INCOME-TAX DE PARTMENT HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUES. THE INCOME-TAX DE PARTMENT SHALL NOT BE PRECLUDED FROM FILING AN APPEAL AGAINST THE DISPUTE D ISSUES IN THE CASE OF THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR, OR IN THE C ASE OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR, IF THE TAX E FFECT EXCEEDS THE SPECIFIED MONETARY LIMITS. 7. IN THE PAST, A NUMBER OF INSTANCES HAVE COME TO THE NOTICE OF THE BOARD, WHEREBY AN ASSESSEE HAS CLAIMED RELIEF FROM THE TRI BUNAL OR THE COURT ONLY ON THE GROUND THAT THE DEPARTMENT HAS IMPLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN THE CASE OF THE ASSESSEE FOR ANY OTHER ASS ESSMENT YEAR OR IN THE CASE OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESS MENT YEAR, BY NOT FILING AN APPEAL ON THE SAME DISPUTED ISSUES. THE DEPARTMENT AL REPRESENTATIVES/COUNSELS MUST MAKE EVERY EFFORT TO BRING TO THE NOTICE OF TH E TRIBUNAL OR THE COURT THAT THE APPEAL IN SUCH CASES WAS NOT FILED OR NOT ADMITTED ONLY FOR THE REASON OF THE TAX EFFECT BEING LESS THAN THE SPECIFIED MONETARY LIMIT AND, THEREFORE, NO INFERENCE SHOULD BE DRAWN THAT THE DECISIONS RENDERED THEREIN WERE ACCEPTABLE TO THE DEPARTMENT. ACCORDINGLY, THEY SHOULD IMPRESS UPON THE TRIBUNAL OR THE COURT THAT SUCH CASES DO NOT HAVE ANY PRECEDENT VALUE. AS THE EVIDENCE OF NOT FILING APPEAL DUE TO THIS INSTRUCTION MAY HAVE TO BE PRODUCED IN COURTS, THE JUDICIAL FOLDERS IN THE OFFICE OF CSIT MUST BE MAINTAINED IN A SYSTEMIC MAN NER FOR EASY RETRIEVAL. 6 ITA NOS.1217 TO 1223/PN/2011 CO NOS.82 TO 88/PN/2011 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSU ES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT : (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECT IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREI GN ASSETS / BANK ACCOUNTS. 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE SH ALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OTHER THAN INCOME TAX. FILI NG OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVERNED BY RELEVANT P ROVISIONS OF STATUTE & RULES. FURTHER, FILING OF APPEAL IN CASES OF INCOME TAX, W HERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUCH AS THE CASE OF R EGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT, 1961, SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AND DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 9. THE RETROSPECTIVE OPERATION OF THE INSTRUCTIONS TO PENDING APPEALS IS PROVIDED IN PARA 10 OF THE CIRCULAR, WHICH READS AS UNDER:- 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS / TRIBUNALS. PE NDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN / NOT P RESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 10. IN THE FACTS OF THE PRESENT CASE, AND THE PERUS AL OF THE ORDER OF THE CIT(A) AND THE TABULATED DETAILS FILED BY THE ASSESSEE REF LECT THAT THE TAX EFFECT IN EACH OF THE YEAR IN WHICH THE REVENUE HAS FILED THE APPEAL IS BELOW RS.10 LAKHS. IN VIEW OF THE ABOVE SAID INSTRUCTIONS OF CBDT IN THE APPEAL W HERE THE TAX EFFECT IS LESS THAN RS.10 LAKHS, THE APPEAL FILED BY THE REVENUE, WHICH IS PENDING BEFORE THE TRIBUNAL IS NOT TO BE PRESSED OR WITHDRAWN BY THE REVENUE. SINCE THE TAX EFFECT IN THE PRESENT APPEALS FILED BY THE REVENUE IS ADMITTEDLY LESS THAN RS.10 LAKHS, THEREFORE, IN VIEW OF THE INSTRUCTIONS OF CBDT AND THE ENTIRET Y OF FACTS, WE DISMISS THE APPEALS FILED BY THE REVENUE AS NOT MAINTAINABLE. 7 ITA NOS.1217 TO 1223/PN/2011 CO NOS.82 TO 88/PN/2011 11. THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE WITHDRAWN, HENCE THE SAME ARE DISMISSED AS WITHDRAWN. 12. IN THE RESULT, THE APPEALS OF THE REVENUE AND T HE CROSS OBJECTIONS FILED BY THE ASSESSEE FOR THE RESPECTIVE YEARS ARE DISMISSED . ORDER PRONOUNCED ON THIS 06 TH DAY OF JANUARY, 2016. SD/- SD/- ( PRADIP KUMAR KEDIA ) ( SUSHMA CHOWLA ) # / ACCOUNTANT MEMBER / JUDICIAL MEMBER PUNE ; DATED : 06 TH JANUARY, 2016. % & '() *)' / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A), AURANGABAD; 4) THE CIT, AURANGABAD; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. %+ / BY ORDER , //TRUE COPY// ! '# / SR. PRIVATE SECRETARY $ %& %'' , / ITAT, PUNE