The ACIT, Circle 1, JAMNAGAR V. Shri Virendrakumar Satpaul Gandhi,

ITA 1295/RJT/2010

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0213 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-09-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 29-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANKUR GARG
• Keywords: Difference of opinion; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAV A, AM ITA NO.1295/RJT/2010. / ASSESSMENT YEAR 2005-06 ADDITIONAL COMMISSIONER OF INCOME TAX, CIRCLE-1, JAMNAGAR. ( * / APPELLANT) VS. SHRI VERENDRAKUMAR SATPAUL GANDHI, 15/1101, NRI COMPLEX, PALM BEACH ROAD,SECTOR- 54,56, NAVI MUMBAI. PAN: ACNPG9721G. +,* / RESPONDENT - / REVENUE BY SHRI ANKUR GARG /- / ASSESSEE BY SHRI. SANJAY R. SHAH - / DATE OF HEARING 6.9.2012 - / DATE OF PRONOUNCEMENT 7.9.2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DATED 7.9.2010 OF CIT(A ), JAMNAGAR FOR THE ASSESSMENT YEAR 2005-06. 2. AT THE OUTSET, SHRI SANJAY R SHAH, THE LD. COUN SEL APPEARED ON BEHALF OF THE ASSESSEE AND POINTED OUT THAT TAX EFFECT I N THIS CASE IS ONLY RS.2,95,973/- WHICH IS LESS THAN RS.3,00,000/-. THE RE VENUE HAS FILED THIS APPEAL ON 29.11.2010 AND VIDE INSTRUCTION NO.3/ 2011, DATED 09-02- 2011, THE REVENUE SHOULD NOT HAVE FILED THIS APPEAL B EFORE THE TRIBUNAL, AND HENCE IT IS NOT MAINTAINABLE. THE LD. COUNSEL FO R THE ASSESSEE SUBMITTED BEFORE US A COPY OF THE JUDGMENT DATED 24-0 8-2012 DELIVERED BY THE HONBLE JURISDICTIONAL HIGH COURT IN CIT V. S URESHCHANDRA ITA NO.1295/RJT/2010. 2 DURGAPRASAD KHATOD (HUF) IN WHICH IT HAS BEEN HELD THA T THE INSTRUCTIONS NO.3/2011 DATED 09-02-2011 ISSUED BY THE CBDT IS RET ROSPECTIVE IN NATURE AND THEREFORE WOULD COVER EVEN THOSE APPEALS A LSO WHICH HAVE BEEN FILED BEFORE 09-02-2011. AS AGAINST THIS, THE LD. DR DREW OUR ATTENTION TO PARA-11 OF THE INSTRUCTIONS NO.3/2011 DATED 09-02-2011 ISSUED BY THE CBDT WHEREIN IT IS SPECIFICALLY PROVIDED TH AT THE MONETARY LIMIT OF RS.3 LAKHS FIXED BY THE CBDT FOR FILING APPE AL BEFORE THIS TRIBUNAL APPLIES ONLY TO THOSE APPEALS WHICH ARE FILED ON OR AFTER THE DATE OF ISSUE OF THE AFORESAID INSTRUCTIONS I.E. 09-02-2011 AND NOT T HOSE FILED BEFORE THAT DATE I.E. 9.2.2011. PARA 11 ALSO STATES THAT THE APPEALS FILED BEFORE THE ISSUE OF INSTRUCTIONS DATED 9.2.2011 WOULD BE GOVERN ED BY THE INSTRUCTION OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. HE ACCORDINGLY POINTED OUT THAT MONETARY LIMIT FOR FIL ING THE APPEAL AT THE RELEVANT TIME WAS RS.2 LAKHS WHEN THE PRESENT APPEAL WAS FILED AND THAT THE TAX EFFECT IN THE PRESENT CASE IS OVER RS.2 LAKHS. I N SUPPORT OF HIS CONTENTION THE LD. DR RELIED ON THE JUDGMENT OF HON BLE JURISDICTIONAL HIGH COURT IN CIT V/S CONCORD PHARMACEUTICALS, 317 ITR 395 , 416 (GUJ). 3. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CONSIDE RED THEIR SUBMISSIONS. THE LD. DEPARTMENTAL REPRESENTATIVE IS RIGH T IN HIS SUBMISSION THAT PARA 11 OF THE INSTRUCTIONS DATED 09-0 2-2011 ISSUED BY THE CBDT SPECIFICALLY PROVIDES THAT THE MONETARY LIMIT OF RS.3 LAKHS FIXED BY THE CBDT FOR FILING APPEAL BEFORE THIS TRIB UNAL APPLIES TO THOSE APPEALS ONLY WHICH ARE TO BE FILED FILED ON OR AFTER THE DATE OF ISSUE OF THE AFORESAID INSTRUCTIONS I.E. 09-02-2011 AND NOT THOSE FIL ED BEFORE THAT DATE. PARA 11 ALSO STATES THAT THE APPEALS FILED BEFORE THE ISSUE OF INSTRUCTIONS DATED 9.2.2011 WOULD BE GOVERNED BY THE INSTRUCTIONS OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. IT IS NOT IN DISPUTE THAT THE MONETARY LIMIT FOR FILING THE APPEAL WAS RS. 2 LAKHS UNDER THE INSTRUCTIONS OPERATIVE AT THE TIME WHEN THE PRESENT APPEAL WAS FILED AND THA T THE TAX EFFECT IN THE PRESENT CASE WAS WELL OVER RS.2 LAKHS. 4. IN SUPPORT OF HIS SUBMISSION THAT THE MONETARY LIMI T FOR FILING THE APPEAL BEFORE THIS TRIBUNAL HAS TO BE SEEN WITH REFER ENCE TO THE INSTRUCTIONS OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED, THE LD. ITA NO.1295/RJT/2010. 3 DEPARTMENTAL REPRESENTATIVE REFERRED TO JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN CIT V/S CONCORD PHARMACEUT ICALS (SUPRA) IN WHICH THE HONBLE HIGH COURT HAS HELD AS UNDER: THERE IS ALSO DIFFERENCE OF OPINION AMONGST THE COURT S WITH REGARD TO THE APPLICABILITY OF THE CIRCULAR. IF, ON THE DATE OF FILING OF AN APPEAL, A CIRCULAR IS NOT IN FORCE OR CERTAIN EXCEPTIONS ARE NOT THERE OR MONETARY LIMIT IS LESS THAN WHAT WAS THERE AT THE TI ME OF DECIDING THIS APPEAL, IN SUCH CASES, THE TRIBUNAL WILL HAVE TO GIV E DUE WEIGHTAGE TO THE PROVISIONS CONTAINED IN THE CIRCULAR PR EVALENT ON THE DATE OF FILING OF APPEAL AND NOT ON THE DATE OF THE DECISION OF THE APPEAL. IN CHHAGER PACKAGING AND PLASTICS (P) LTD.S CA SE [2008] 300 ITR 180 THE BOMBAY HIGH COURT TOOK THE VIEW THAT CIRCULARS/INSTRUCTIONS ISSUED BY THE BOARD ARE APPLICABLE ON LY RETROSPECTIVELY AND IF THERE IS NO REFERENCE TO THEIR A PPLICABILITY TO THE PENDING MATTERS, SUCH PENDING MATTERS CANNOT BE DECI DED ON THE BASIS OF CIRCULARS/INSTRUCTIONS. 5. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HA S HOWEVER FILED A LATEST JUDGMENT DATED 24-08-2012 DELIVERED B Y THE HONBLE JURISDICTIONAL HIGH COURT IN CIT V. SURESHCHANDRA DURG APRASAD KHATOD (HUF) IN TAX APPEAL NO.1404 OF 2010 IN WHICH THE HON BLE HIGH COURT HAS HELD THAT THE AFORESAID INSTRUCTIONS ISSUED BY THE CBDT IN 2011 WERE RETROSPECTIVE IN NATURE AND WOULD APPLY TO THE PENDIN G APPEALS ALSO. IN THIS VIEW OF THE MATTER, IT IS HELD THAT THE AFORESAID INSTRUCTIONS WOULD COVER THE PRESENT APPEAL ALSO THOUGH IT WAS FILED IN 2010. 6. IT IS NOT DISPUTED BY THE DEPARTMENT THAT THE TAX EFFECT IS INVOLVED IN THE PRESENT APPEAL IS ONLY RS.2,95,973/- WHICH IS BELO W RS.3 LAKHS. IN THIS VIEW OF THE MATTER, THE APPEAL FILED BY THE DEP ARTMENT IS HELD TO BE NOT MAINTAINABLE IN VIEW OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN CIT V. SURESHCHANDRA DURGAPRASAD KHATOD (HU F), CITED SUPRA.. APPEAL FILED BY THE DEPARTMENT IS DISMISSED. ITA NO.1295/RJT/2010. 4 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED ABOVE. SD SD ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE : 7.9.2012 /RAJKOT SRL - -- - +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-. 2. +,* / RESPONDENT- 3. : / CONCERNED CIT. 4. :- / CIT (A). 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.