DCIT, Corporate Circle-1(1), Bhubaneswar V. M/s. Magnum Sea Foods Ltd., Bhubaneswar

ITA 123/CTK/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7987 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 23-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P R MOHANTY
• Keywords: Audit objection; Tax effect
• Section: 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK , . . , BEFORE SHRI CHANDRA MOHAN GARG, J M AND SHRI L .P. SAHU, A M ./ ITA NO. 123 /CTK /20 1 7 ( / ASSESSMENT YEAR :201 0 - 201 1 ) DCIT, CORPORATE CIRCLE - 1(1), BHUBANESWAR VS. M/S MAGNUM SEA FOODS LTD., 132 - A, SECTOR - A, ZONE - A, MANCHESWAR I NDUSTRIAL ESTATE, BHUBANESWAR - 751010 ./ ./ PAN/GIR N O. : A A ACO 4833 G ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI SUBHENDU DUTTA, DR /ASSESSEE BY : SHRI P.R.MOHANTY, ADVOCATE / DATE OF HEARING : 16/07/2019 / DATE OF PRONOUNCEMENT : 16/07/2019 / O R D E R PER L.P.SAHU, A M : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER PASSED BY LEARNED CIT(A) - 1 , BHUBANESWAR FOR THE ASSESSMENT YEAR 20 1 0 - 1 1 . 2. HEARD BOTH THE PARTIES AND PERUSED THE RECORD. 3. DURING THE COURSE OF HEARING, THE LD. DR SUBMITTED THAT THERE IS NO DOUBT THAT TAX EFFECT INVOLVED IN THE APPEAL IS LESS THAN RS.20 LAKHS, THUS, BOUND BY THE DEPARTMENTAL INSTRUCTION, THE APPEAL HAS TO BE WITHDRAWN. HOWEVER, ATTENTION WAS INVITED TO PARA 1 0 OF THE CIRCULAR NO. 3/2018, DATED 11 TH JULY, 2018, WHICH HAS BEEN MODIFIED BY CIRCULAR DATED 20TH ITA NO .123 /CTK/201 7 2 AUGUST, 2018 AND IN TERMS OF THE SAID MODIFICATION THE DEPARTMENTAL REPRESENTATIVES MADE A PRAYER THAT PERMISSION TO PRAY FOR RECALL OF THE ORDER MAY BE GRA NTED IN CASE ANY OF THE CONDITIONS IN THE REPORTS MADE AVAILABLE BY THE A.O. SUBSEQUENTLY, SHOW THAT THE ISSUES WERE REQUIRED TO BE CONTESTED. THE MODIFIED PARA IS EXTRACTED HEREUNDER: 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CON TESTED 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 PROVISIONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHE RE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN INCOME/UNDISCL OSED FOREIGN ASSETS (INCLUDING FINANCIAL ASSETS)/ UNDISCLOSED FOREIGN BANK ACCOUNT. (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/ DIRECTORATE GENERAL OF GST IN TELLIGENCE (DGGI). (F) CASES WHERE PROSECUTION HAS BEEN FILED BY THE DEPARTMENT AND IS PENDING IN THE COURT. 4. GOING BY THE PRESCRIPTION OF CIRCULAR NO. 3/2018, DATED 11TH JULY, 2018, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HAVE EITHER NOT FILED T HE INSTANT APPEAL BEFORE THE TRIBUNAL OR WITHDRAWN THE SAME AS THE TAX EFFECT IN THE APPEAL IS ADMITTEDLY LESS THAN THE PRESCRIBED LIMIT, I.E., RS. 20,00,000/ - FOR NOT FILING THE APPEALS. ACCORDINGLY, WE DISMISS THE APPEAL FILED BY THE REVENUE WITHOUT GOIN G INTO MERITS OF THE CASE. HOWEVER, IT IS MADE CLEAR THAT THE DEPARTMENT IS AT LIBERTY TO FILE MISCELLANEOUS ITA NO .123 /CTK/201 7 3 APPLICATION, IF THE TAX EFFECT IS FOUND TO BE MORE THAN THE PRESCRIBED LIMIT OF RS.20,00,000/ - OR ANY OF THE CONDITIONS ETC., AS AVAILABLE IN THE A MENDMENT CARRIED OUT IN PARA 10 OF CIRCULAR NO. 3/2018, DATED 20.08.2018, IS MADE OUT. ACCORDINGLY, THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 16 / 0 7 / 201 9 . SD/ - ( C.M.GARG ) SD/ - ( L.P.SAHU ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 1 6 / 0 7 /201 9 . . / PKM , S R.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR P RIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . DCIT, CORPORATE CIRCLE - 1(1), BHUBANESWAR 2. / THE RESPONDENT - M/S MAGNUM SEA FOODS LTD., 132 - A, SECTOR - A, ZONE - A, MANCHESWAR INDUSTRIAL ESTATE, BHUBANESWAR - 751010 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//