ITO, Wd.-3(2), Nanded V. Shri Ingle Kishan Rajaram, Nanded

ITA 1236/PUN/2009

• Counselvise Citation: 123624514 RSA 2009
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 16-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER I.T.A. NO. 1236/PN/2009 : A.Y. 2005-06 I.T.O. WARD 3(2) NANDED : APPELLANT VS. INGLE KISHAN RAJARAM PROP. RUSHI AUTOMOBILES, IOC DEALER, TAL. LOHA, DIST. NANDED : RESPNDENT APPELLANT : SHRI T. CHACKOMANI RESPONDENT BY : SHRI SHYAM BORDE ORDER PER SHAIALENDRA KUMAR YADAV, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)III, AU RANGABAD DATED 27.7.2009 FOR A.Y. 2005-06. 2. AT THE TIME OF HEARING, THE LEARNED REPRESENTATI VE FOR THE ASSESSEE RAISED A PRELIMINARY OBJECTION BY POINTING OUT INSTRUCTION NO. 3/2011 DATED 09.02.2011 ISSUED BY T HE CENTRAL BOARD OF DIRECT TAXES (CBDT) FIXING THE MON ETARY LIMITS FOR FILING OF DEPARTMENTAL APPEALS BEFORE TH E TRIBUNAL. IN TERMS OF THE SAID INSTRUCTION, MONETARY LIMIT FOR F ILING DEPARTMENTAL APPEAL TO THE TRIBUNAL HAS BEEN FIXED AT RS 3 LAKHS. IN OTHER WORDS, IN CASES WHERE THE TAX EFFEC T OF THE ADDITIONS DELETED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) 1236/PN/09: A.Y 2005-06 INGLE KISHAN RAJARAM 2 IS LESS THAN RS 3 LAKHS, NO APPEAL SHALL BE FILED B Y THE DEPARTMENT IN SUCH CASES. ACCORDING TO THE LEARNED REPRESENTATIVE, THE TAX EFFECT WITH RESPECT TO THE RELIEF ALLOWED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IN THE CAPTIONED APPEALS IN EACH OF THE YEAR IS BELOW RS 3 LAKHS. SU CH FACTUAL MATRIX HAS NOT BEEN CONTESTED BY THE LEARNED DEPART MENTAL REPRESENTATIVE FOR THE REVENUE, THOUGH THE RELIEF A LLOWED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IS SOUGHT TO BE ASSAILED ON MERITS, BY RELYING ON THE JUDGMENT OF T HE HONBLE DELHI HIGH COURT IN THE CASE OF LOGITRONICS P. LTD (SUPRA). 3. THE LEARNED REPRESENTATIVE FOR THE RESPONDENT-AS SESSEE FURTHER RELIED UPON A RECENT DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ITO V SHRI ASHOK G. DHA NDHARIAI, MUMBAI IN ITA NO. 2460/MUM/2010 DATED 28.2.2011 TO CANVASS THAT THE REVISED INSTRUCTIONS DATED 9.2.201 1 (SUPRA) ARE APPLICABLE TO THE PRESENT CASE ALSO, ALTHOUGH S UCH APPEALS HAVE BEEN FILED ON A PRIOR DATE. IN VIEW OF THE PRE CEDENT BROUGHT OUT BY THE LEARNED REPRESENTATIVE FOR THE A SSESSEE, FACTUALLY THE APPEAL IS LIABLE TO BE CONSIDERED TO HAVE BEEN FILED CONTRARY TO THE CBDT INSTRUCTIONS DATED 9.2.2 011 (SUPRA). THE TRIBUNAL FOLLOWING THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V MADHUKAR K. INAMDAR (HUF) 318 ITR 149 AND CIT V PITHWA ENGINEERING WORK S 276 ITR 519 (BOM) FOUND IT APPROPRIATE TO DISMISS THE 1236/PN/09: A.Y 2005-06 INGLE KISHAN RAJARAM 3 DEPARTMENTAL APPEAL ON THE GROUND THAT TAX EFFECT I S LESS THAN RS 3 LAKHS, EVEN IN A CASE WHERE THE DEPARTMENTAL A PPEAL WAS FILED PRIOR TO THE DATE OF THE CBDT INSTRUCTION DAT ED 9.2.2011 (SUPRA). THE FOLLOWING DISCUSSION IN THE ORDER IS W ORTHY OF NOTICE: 5. WE HEARD BOTH THE PARTIES. THE CASE OF CIT VS. CHHAJER PACKAGING & PLASTICS PVT. LTD. 300 ITR RELI ED ON BY THE DR IS DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE. AT PARA 12 PAGE 184 OF THE DECISION IN THE CA SE OF CHHAJER PACKAGING & PLASTICS PVT. LTD. IT HAS BEEN HELD AS FOLLOWS: OTHERWISE ALSO, PARAGRAPH OF THIS CIRCULAR ITSELF SAVES CERTAIN APPEALS FROM BEING OBSTRUCTED DUE TO FINANCIAL LIMITS. PARAGRAPH 3 READS: THE BOARD HAS ALSO DECIDED THAT IN CASES INVOLVING SUBSTANTIAL QUESTION OF LAW OF IMPORTANCE AS WELL AS IN CASES WHERE THE SAME QUESTION OF LAW WILL REPEATEDLY ARISE, EITHER IN THE CASE CONCERNED OR IN SIMILAR CASES, SHOULD BE SEPARATELY CONSIDERED ON THE MERITS WITHOUT BEING HINDERED BY THE MONETARY LIMITS. IT IS EVIDENT THAT, WHENEVER THERE IS A SUBSTANTIAL QUESTION OF LAW, OR QUESTION OF LAW WHICH IS LIKELY TO RECUR IN FUTURE, THE DEPARTMENT IS NOT PROHIBITED FROM FILING AND PURSUING APPEALS. WE BELIEVE THAT THE SAVING CLAUSE SAVES THE PRESENT APPEAL SINCE IT INVOLVES A QUESTION OF LAW REGARDING INTERPRETATION OF SECTION 275(1)(C) OF THE ACT, AND MORE PARTICULA RLY THE ASPECT OF MANNER IN WHICH THE LIMITATION SHOULD BE COMPUTED IN THE LIGHT OF THE SAID PROVISIONS. WE HAVE, THEREFORE, PROCEEDED TO HEAR THE ADVOCATES ON THE MERITS. IN OUR OPINION, THE CASE OF CIT V CHHAJER WAS WITH RESPECT OF INTERPRETATION OF 275(1)(C) OF THE ACT A ND HENCE CAME UNDER THE EXCEPTION CLAUSE UNDER THE 1236/PN/09: A.Y 2005-06 INGLE KISHAN RAJARAM 4 CBDT CIRCULAR AND WAS NOT OBSTRUCTED BY THE MONETARY LIMIT OF RS 3 LAKHS PRESCRIBED BY THE CIRCULAR. THEREFORE THE CASE OF 300 ITR 180 IS INAPPLICABLE TO THE FACTS OF OUR CASE. FURTHER INSTRUCTION NO. 5 DT. 15.5.2008 FIXING THE MONETARY LIMIT AT RS 2 LAKHS IS SIMILAR TO THAT OF INSTRUCTI ON NO. 3 DATED 9.2.2011 WHICH THE ASSESSEE HAS BROUGHT TO OUR NOTICE IN SUPPORT OF HIS CONTENTION. SINCE BOTH THE INSTRUCTION NOS. 5 & 3 ARE IDENTICAL , THE RATIO OF THE DECISION IN THE CASE OF CIT V PITH WA ENGG. WORK WHICH DEALS WITH INSTRUCTION NO. 5 DT. 15.5.2008 SHALL EQUALLY APPLY TO THE PRESENT CASE WHICH FALLS UNDER LNSTRUCTION NO. 3 DATED 9.2.2011. FOLLOWING THE RATIO OF THE DECISION IN THE CASE OF CIT V PITHWA ENGG. WORK WHEREIN IT HAS BEEN HELD THAT IN OUR VIEW, THE BOARDS CIRCULAR DT. 27 TH MARCH, 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED, WE DISMISS THE DEPARTMENTAL APPEAL ON THE GROUND THAT THE TAX EFFECT IS LESS THAN 3 LAKHS. 4. FOLLOWING THE AFORESAID PRECEDENT, THE CAPTIONED APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED IN V IEW OF CBDT INSTRUCTION NO. 3 DATED 9.2.2011 (SUPRA) AND LEGAL POSITION ON THE ISSUE AS DISCUSSED ABOVE, AS THE TAX EFFECT WIT H RESPECT TO THE QUANTUM OF RELIEF ALLOWED BY THE COMMISSIONER O F INCOME- TAX (APPEALS) IS BELOW RS 3 LAKHS AND IT HAS NOT BE EN SHOWN THAT THE APPEAL FALLS UNDER ANY OF THE EXCEPTIONS P ROVIDED IN PARA 8 OF THE CBDT INSTRUCTION (SUPRA). WE ORDER AC CORDINGLY. 1236/PN/09: A.Y 2005-06 INGLE KISHAN RAJARAM 5 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING, I.E. 13/04/2011. SD/- SD/- (G.S. PANNU) ACCOUNTANT MEMBER (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE: DATED: 25 TH APRIL, 2011 ANKAM COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)- AURANGABAD 4. THE CIT- AURANGABAD 5. THE D.R, A BENCH, PUNE TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE