ACIT, Coimbatore V. M/s. Senthil Fruit Products Pvt. Ltd., Coimbatore

ITA 1305/CHNY/2010

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8647 (ITAT-CHENNAI)
• Duration Of Justice: 6 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-08-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 11-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Audit objection; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NOS.1303 & 1304/MDS/2010 ( )( / ASSESSMENT YEARS : 2000-01 & 2001-02 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I, COIMBATORE. : V. M/S SENTHIL EXPLOSIVES PVT. LTD., 107A, SENGUPTA STREET, RAM NAGAR, COIMBATORE 641 009 PAN : AAECS 3245 A (+,/ APPELLANT) (-.+,/ RESPONDENT) ./ ITA NOS.1305 & 1306/MDS/2010 ( )( / ASSESSMENT YEARS : 2003-04 & 2006-07 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I, COIMBATORE. V. M/S SENTHIL FRUIT PRODUCTS PVT. LTD. 107A, SENGUPTA STREET, RAM NAGAR, COIMBATORE 641 009 PAN : AAECS 3245 A (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : NONE -.+, / 0 / RESPONDENTS BY : SHRI S. SRIDHAR, ADVOCATE 1 / 2% / DATE OF HEARING : 18.08.2016 3') / 2% / DATE OF PRONOUNCEMENT : 18.08.2016 2 I.T.A. NOS.1303 TO 1306/MDS/10 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: ALL THE APPEALS OF THE REVENUE ARE DIRECTED AGAI NST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) II, COIMBATORE, FOR THE ASSESSMENT YEARS 2000-01, 2 001-02, 2003- 04 AND 2006-07. 2. WHEN THE APPEALS WERE TAKEN UP FOR HEARING 17.08 .2016, THE LD. SENIOR STANDING COUNSEL SHRI T.R. SENTHIL KUMAR AND THE LD.COUNSEL FOR THE ASSESSEE SHRI S. SRIDHAR SUBMITT ED THAT IN ALL THE APPEALS, THE TAX EFFECT INVOLVED IS LESS THAN ` 10 LAKHS, THEREFORE, THE APPEALS ARE NOT MAINTAINABLE BEFORE THIS TRIBUNAL. HOWEVER, SHRI T.R. SENTHIL KUMAR, THE LD. SENIOR STANDING COUNSEL FOR THE DEPARTMENT SUBMITTED THAT HE WANTED TO VERIFY WHETH ER THERE WAS ANY AUDIT OBJECTION IN THESE CASES. IF THERE IS AN Y AUDIT OBJECTION, ACCORDING TO THE LD. SENIOR STANDING COUNSEL, IT WO ULD NOT BE WITHIN THE PURVIEW OF INSTRUCTIONS ISSUED BY THE CBDT TO W ITHDRAW THE APPEALS PENDING BEFORE THIS TRIBUNAL. ON THE REQUE ST OF LD. SENIOR STANDING COUNSEL TO VERIFY WHETHER THERE WAS ANY AU DIT OBJECTION IN THESE CASES, THE APPEALS WERE POSTED TO 18.08.2016. 3 I.T.A. NOS.1303 TO 1306/MDS/10 3. WHEN THE APPEALS WERE TAKEN UP FOR HEARING ON 18 .08.2016, THE LD. SENIOR STANDING COUNSEL FOR THE REVENUE WAS NOT PRESENT. IT WAS REPRESENTED BY SHRI NANDAKUMAR, JOINT COMMIS SIONER OF INCOME TAX. SHRI SENTHIL KUMAR, LD. SENIOR STANDIN G COUNSEL HAS TO GO TO HIGH COURT. MOREOVER, SHRI NANDAKUMAR, JC IT SUBMITTED THAT THE APPEALS MAY BE DISMISSED SINCE THE TAX EFF ECT IS ADMITTEDLY LESS THAN ` 10 LAKHS BY GIVING LIBERTY TO THE REVENUE FOR FILIN G MISCELLANEOUS PETITION IN CASE THERE WAS ANY AUDIT OBJECTION. 4. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 153(2) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE A CT'). SECTION 153(2) ENABLES THE PRINCIPAL COMMISSIONER OR THE CO MMISSIONER TO DIRECT THE ASSESSING OFFICER TO FILE APPEAL AGAINST THE ORDER OF THE CIT(APPEALS) BEFORE THIS TRIBUNAL. THE DECISION FO R FILING THE APPEAL BEFORE THE TRIBUNAL HAS TO BE TAKEN BY THE CONCERNE D PRINCIPAL COMMISSIONER OR COMMISSIONER ON THE ADMINISTRATIVE SIDE. IN THE PROCESS OF TAKING DECISION TO FILE APPEAL BEFORE TH IS TRIBUNAL, IT IS OPEN TO THE PRINCIPAL COMMISSIONER OR COMMISSIONER TO CONSIDER AUDIT OBJECTION, IF ANY, AVAILABLE ON RECORD. IF T HE AUDIT OBJECTION WAS NOT BROUGHT TO THE NOTICE OF THE PRINCIPAL COMM ISSIONER OR COMMISSIONER AT THE TIME OF TAKING DECISION TO FILE APPEAL BEFORE 4 I.T.A. NOS.1303 TO 1306/MDS/10 THIS TRIBUNAL, THEN IT CANNOT BE SAID THAT THE APPE AL WAS FILED BECAUSE OF AUDIT OBJECTION. THEREFORE, THE MATTER NEEDS TO BE VERIFIED IN ITS ENTIRETY AND FIND OUT WHETHER THE P RINCIPAL COMMISSIONER OR THE ADMINISTRATIVE COMMISSIONER WAS INFLUENCED BY THE AUDIT OBJECTION OF THE DEPARTMENT WHILE TAKI NG THE DECISION TO FILE THE APPEAL. 5. A FURTHER QUESTION MAY ARISE WHETHER THE DECISIO N TO FILE THE APPEAL BEFORE THIS TRIBUNAL HAS TO BE TAKEN BY THE COMMISSIONER OR BY THE AUDIT PARTY? IF THE AUDIT PARTY ARISES OBJE CTION WITH REGARD TO ORDER OF THE CIT(APPEALS) OR ASSESSING OFFICER AND THE COMMISSIONER DECIDES TO DIRECT THE ASSESSING OFFICE R TO FILE APPEAL BEFORE THIS TRIBUNAL, AFTER CONSIDERING ALL THE MAT ERIAL INCLUDING THE AUDIT OBJECT, THEN WE MAY SAY THAT THE APPEAL FILED BY THE REVENUE WAS EXCLUDED FROM THE PURVIEW OF CBDT INSTRUCTIONS. IN THE ABSENCE OF ANY MATERIAL ON RECORD AND THE REVENUE C OULD NOT ASCERTAIN THE AUDIT OBJECTION INSPITE OF GRANT OF T IME TO VERIFY, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEED NOT BE KEPT PENDING FURTHER. MOREOVER, THE POWER TO DECID E FOR FILING OF APPEAL WAS SPECIFICALLY CONFERRED ON THE PRINCIPAL COMMISSIONER OR THE COMMISSIONER AS THE CASE MAY BE. THEREFORE, AN ISSUE MAY 5 I.T.A. NOS.1303 TO 1306/MDS/10 ARISE WHETHER THE AUDIT PARTY OF THE DEPARTMENT CAN USURP THE POWER OF THE COMMISSIONER AND WHAT IS THE LIMITATIO N AND ROLE OF THE AUDIT PARTY IN FILING BEFORE THE COMMISSIONER? THE SE APPEALS ARE PENDING FROM THE YEAR 2010. EVEN AFTER EXPIRY OF S IX YEARS, THE DEPARTMENT COULD NOT VERIFY THE STATUS, NAMELY, THE AVAILABILITY OF AUDIT OBJECTION. THEREFORE, INSTEAD OF KEEPING THE MATTER PENDING, ALL THE APPEALS OF THE REVENUE ARE DISMISSED AS SUG GESTED BY THE JOINT COMMISSIONER OF INCOME TAX SINCE THE TAX EFFE CT INVOLVED IN THESE APPEALS ARE ADMITTEDLY LESS THAN ` 10 LAKHS. 6. HOWEVER, IT IS OPEN TO THE REVENUE TO FILE MISCE LLANEOUS PETITION IN CASE THERE IS ANY AUDIT OBJECTION AND T HE COMMISSIONER DECIDED TO FILE APPEALS BEFORE THIS TRIBUNAL AFTER CONSIDERING THE AUDIT OBJECTIONS. WHILE FILING THE MISCELLANEOUS P ETITION, THE REVENUE SHALL BRING ALL THE MATERIAL FACTS ON RECOR D AND THE OFFICE NOTE PUT UP BEFORE THE PRINCIPAL COMMISSIONER OR CO MMISSIONER FOR TAKING DECISION TO FILE APPEAL BEFORE THIS TRIBUNAL . 7. WITH THE ABOVE OBSERVATION, ALL THE APPEALS OF T HE REVENUE ARE DISMISSED. 6 I.T.A. NOS.1303 TO 1306/MDS/10 ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 18 TH AUGUST, 2016. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-II, COIMBATORE 4. 1 92 /CIT, CENTRAL-III, CHENNAI 5. 7: -2 /DR 6. ;( < /GF.