ACIT, Circle - 28, Kolkata , Kolkata V. M/s. Shimpho Exports , Kolkata

ITA 1421/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3665 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 02-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA [BEFORE SHRI P.M. JAGTAP, HONBLE VICE PRESIDENT-KZ & SRI S.S. VISWANETHRA RAVI, HONBLE JUDICIAL MEMBER] I.T.A. NO. 1421/KOL/2018 ASSESSMENT YEAR: 2010-11 ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-28, KOLKATA......................APPELLANT VS. M/S. SHIMPHO EXPORTS...............RESPONDENT 2,B.B. SENGUPTA ROAD BEHALA KOLKATA- 700 034 [PAN: AAMFS 0504 K] APPEARANCES BY: SHRI ROBIN CHOUDHURY, ADDL. CIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE NONE, APPEARED ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : AUGUST 28 TH , 2019 DATE OF PRONOUNCING THE ORDER : AUGUST 28 TH , 2019 O R D E R PER P.M. JAGTAP, VP-KZ :- ADMITTEDLY THE TAX EFFECT IN THIS REVENUE APPEAL, IS LESS THAN RS.50,00,000/-. IN CIRCULAR NO. 17/2019, DT. 08/08/2019 VIDE F. NO. 279/ MISC. 142/2007-ITJ(PT.), THE CBDT HAS MODIFIED CIRCULAR NO. 3 OF 2018 DT. 11/07/2018. FURTHER, THE CBDT IN ITS CIRCULAR F. NO. 279/MISC./M-93/2018-ITJ, DT. 20/08/2019, HAS CLARIFIED THAT THE REVISED MONETARY LIMITS, SO MENTIONED IN CIRCULAR NO. 17/2019 IS APPLICABLE TO ALL PENDING APPEALS. AS PER THESE CIRCULARS ALL THE REVENUE APPEALS FILED BEFORE THE ITAT, HAVING TAX EFFECT OF LESS THAN RS.50,00,000/- HAVE TO TREATED AS WITHDRAWN. 2. THE AHMEDABAD BENCH OF THE ITAT IN THE CASE OF ITO VS. DINESH MADHAVLAL PATEL IN ITA NO. 1398/AHD/2004, ASSESSMENT YEAR 1998-99, ORDER DT. 14/08/2019, WHILE DISPOSING OFF THE APPEAL ALONG WITH 627 OTHERS APPEALS, HELD AS FOLLOWS:- 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND HAVING PERUSED THE MATERIAL ON RECORD, WE DO NOT HAVE SLIGHTEST OF HESITATION IN HOLDING THAT THE CONCESSION EXTENDED BY THE CBDT NOT ONLY APPLIES TO THE APPEALS TO BE FILED IN FUTURE BUT IT IS ALSO EQUALLY APPLICABLE TO THE APPEALS PENDING FOR DISPOSAL AS ON NOW. OUR LINE OF REASONING IS THIS. THE CIRCULAR DATED 8TH AUGUST 2019 IS NOT A STANDALONE CIRCULAR. IT IS TO BE READ IN CONJUNCTION WITH THE CBDT CIRCULAR NO 3 OF 2018 (AND SUBSEQUENT AMENDMENT THERETO), AND ALL IT DOES IS TO REPLACE PARAGRAPH NOS. 3 AND 5 OF THE SAID CIRCULAR. THIS IS EVIDENT FROM THE FOLLOWING EXTRACTS FROM THE CIRCULAR DATED 8 TH AUGUST 2019: 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATION. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME-TAX CASES BE ENHANCED FURTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY. THE TABLE FOR MONETARY LIMITS SPECIFIED IN PARA 3 OF THE CIRCULAR SHALL READ AS FOLLOWS: S.NO. APPEALS/SLPS IN INCOME-TAX MATTERS MONETARY LIMIT (RS.) 1 BEFORE APPELLATE TRIBUNAL 50,00,000 2 BEFORE HIGH COURT 1,00,00,000 3 BEFORE SUPREME COURT 2,00,00,000 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FILING OF APPEALS I IS PASSED BY HIGHER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY THE FOLLOWING PARA: 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL 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 RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT I S LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. FURTHER, EVEN IN THE CASE OF 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 NO APPEAL SHALL BE FIL OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY 4. THE SAI D MODIFICATIONS SHALL COME INTO EFFECT FROM THE DATE OF ISSUE OF THIS CIRCULAR. 6. CLEARLY, ALL OTHER PORTIONS OF THE CIRCULAR NO. 3 OF 2018 (SUPRA) HAVE REMAINED INTACT. THE PORTION WHICH HAS REMAINED INTACT INCLUDES PARAGRAPH 13 OF THE AFORESAID CIRCULA AS FOLLOWS: 13. THIS CIRCULAR WILL APPLY TO SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELO IN PARE 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. 7. IN VIEW OF THE ABOVE DISCUSSIONS, WE HEREBY HOLD THAT THE RELAXATION IN MONETARY LIMITS FOR DEPARTMENTAL APPEALS, VIDE CBDT CIRCULAR DATED 8TH AUGUST 2019 (SUPRA) SHALL BE APPLIC TO THE PENDING APPEALS IN ADDITION TO THE APPEALS TO BE FILED HENCEFORTH. 8. LEARNED COMMISSIONER (DR) THEN SUBMITS LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIFICATIONS, AND TO SEEK RECALL THE DISMISSAL OF APPEALS AND RESTOR THE APPEALS IN THE CASES (I) IN WHICH IT CAN BE DEMONSTRATED THAT THE APPEALS ARE COVERED BY THE EXCEPTIONS, AND (II) WHICH ARE INADVERTENTLY INCLUDED IN THIS BUNCH OF APPEALS, WHEREIN THE TAX EFFECT, IN TERMS OF THE CBDT CIRCULAR (SUPRA), EXCEEDS PRAYER; WE ACCEPT THE SAME. WE MAKE IT CLEAR THAT THE APPELLANTS SHALL BE AT LIBERTY TO POINT OUT THE CASES WHICH ARE WRONGLY INCLUDED IN THE APPEALS SO SUMMARILY DISMISSED, EITHER OWING TO WRONG COMPUTATION OF TAX EFFECT O EXCEPTIONS- OR FOR ANY OTHER REASON, AND WE WILL TAKE APPROPRIATE REMEDIAL STEPS IN THIS REGARD. 9. IN THE LIGHT OF THE ABOVE DISCUSSIONS, ALL THE APPEALS STAND DISMISSED AS WITHDRAWN. AS THE APPEALS FILED BY THE REVENUE ARE FOUND TO BE NON OBJECTIONS OF THE ASSESSEE ARISE ONLY AS A RESULT OF THOSE APPEALS AND OF THE CIT(A), THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALSO DISMISSED AS INFRUCTUOUS. ORDERED, ACCORDINGLY. 2 2 BEFORE HIGH COURT 1,00,00,000 3 BEFORE SUPREME COURT 2,00,00,000 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FILING OF APPEALS I N SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGHER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS -A- VIS WHERE COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. 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 RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE S LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. FURTHER, EVEN IN THE CASE OF 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 NO APPEAL SHALL BE FIL ED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY D MODIFICATIONS SHALL COME INTO EFFECT FROM THE DATE OF ISSUE OF THIS 6. CLEARLY, ALL OTHER PORTIONS OF THE CIRCULAR NO. 3 OF 2018 (SUPRA) HAVE REMAINED INTACT. THE PORTION WHICH HAS REMAINED INTACT INCLUDES PARAGRAPH 13 OF THE AFORESAID CIRCULA 13. THIS CIRCULAR WILL APPLY TO SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELO W THE SPECIFIED TAX LIMITS IN PARE 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. 7. IN VIEW OF THE ABOVE DISCUSSIONS, WE HEREBY HOLD THAT THE RELAXATION IN MONETARY LIMITS FOR DEPARTMENTAL APPEALS, VIDE CBDT CIRCULAR DATED 8TH AUGUST 2019 (SUPRA) SHALL BE APPLIC TO THE PENDING APPEALS IN ADDITION TO THE APPEALS TO BE FILED HENCEFORTH. 8. LEARNED COMMISSIONER (DR) THEN SUBMITS LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIFICATIONS, AND TO SEEK RECALL THE DISMISSAL OF APPEALS AND RESTOR THE APPEALS IN THE CASES (I) IN WHICH IT CAN BE DEMONSTRATED THAT THE APPEALS ARE COVERED BY THE EXCEPTIONS, AND (II) WHICH ARE INADVERTENTLY INCLUDED IN THIS BUNCH OF APPEALS, WHEREIN THE TAX EFFECT, IN TERMS OF THE CBDT CIRCULAR (SUPRA), EXCEEDS RS 50,00,000. NONE OPPOSES THIS PRAYER; WE ACCEPT THE SAME. WE MAKE IT CLEAR THAT THE APPELLANTS SHALL BE AT LIBERTY TO POINT OUT THE CASES WHICH ARE WRONGLY INCLUDED IN THE APPEALS SO SUMMARILY DISMISSED, EITHER OWING TO WRONG COMPUTATION OF TAX EFFECT O R OWNING TO SUCH CASES BEING COVERED BY THE PERMISSIBLE OR FOR ANY OTHER REASON, AND WE WILL TAKE APPROPRIATE REMEDIAL STEPS IN THIS 9. IN THE LIGHT OF THE ABOVE DISCUSSIONS, ALL THE APPEALS STAND DISMISSED AS WITHDRAWN. AS THE APPEALS FILED BY THE REVENUE ARE FOUND TO BE NON - MAINTAINABLE AND AS ALL THE RELATED CROSS OBJECTIONS OF THE ASSESSEE ARISE ONLY AS A RESULT OF THOSE APPEALS AND MERELY SUPPORT THE ORDER OF THE CIT(A), THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALSO DISMISSED AS INFRUCTUOUS. I.T.A. NO. 1421/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. SHIMPHO EXPORTS N SCENARIOS WHERE SEPARATE ORDER VIS WHERE COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN 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 RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE S LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. FURTHER, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE D MODIFICATIONS SHALL COME INTO EFFECT FROM THE DATE OF ISSUE OF THIS 6. CLEARLY, ALL OTHER PORTIONS OF THE CIRCULAR NO. 3 OF 2018 (SUPRA) HAVE REMAINED INTACT. THE PORTION WHICH HAS REMAINED INTACT INCLUDES PARAGRAPH 13 OF THE AFORESAID CIRCULA R WHICH IS 13. THIS CIRCULAR WILL APPLY TO SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/ APPEALS/ CROSS W THE SPECIFIED TAX LIMITS 7. IN VIEW OF THE ABOVE DISCUSSIONS, WE HEREBY HOLD THAT THE RELAXATION IN MONETARY LIMITS FOR DEPARTMENTAL APPEALS, VIDE CBDT CIRCULAR DATED 8TH AUGUST 2019 (SUPRA) SHALL BE APPLIC ABLE 8. LEARNED COMMISSIONER (DR) THEN SUBMITS LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIFICATIONS, AND TO SEEK RECALL THE DISMISSAL OF APPEALS AND RESTOR ATION OF THE APPEALS IN THE CASES (I) IN WHICH IT CAN BE DEMONSTRATED THAT THE APPEALS ARE COVERED BY THE EXCEPTIONS, AND (II) WHICH ARE INADVERTENTLY INCLUDED IN THIS BUNCH OF APPEALS, WHEREIN THE RS 50,00,000. NONE OPPOSES THIS PRAYER; WE ACCEPT THE SAME. WE MAKE IT CLEAR THAT THE APPELLANTS SHALL BE AT LIBERTY TO POINT OUT THE CASES WHICH ARE WRONGLY INCLUDED IN THE APPEALS SO SUMMARILY DISMISSED, EITHER OWING R OWNING TO SUCH CASES BEING COVERED BY THE PERMISSIBLE OR FOR ANY OTHER REASON, AND WE WILL TAKE APPROPRIATE REMEDIAL STEPS IN THIS 9. IN THE LIGHT OF THE ABOVE DISCUSSIONS, ALL THE APPEALS STAND DISMISSED AS WITHDRAWN. AS THE MAINTAINABLE AND AS ALL THE RELATED CROSS - MERELY SUPPORT THE ORDER OF THE CIT(A), THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALSO DISMISSED AS INFRUCTUOUS. 3. RESPECTFULLY FOLLOWING THE SAME AND WHILE GIVING LIBERTY TO THE PARTIES AS PER PARA 8 OF THE ORDER OF THE AHME THIS APPEAL OF THE REVENUE AS WITHDRAWN. 4. IN THE RESULT, APPEAL OF THE REVENUES IS DISMISSED. KOLKATA, THE SD/- [S.S. VISWANETHRA RAVI] JUDICIAL MEMBER DATED : 28.08.2019 {SC SPS} C OPY OF THE ORDER FORWARDED TO: 1. M/S. SHIMPHO EXPORTS 2,B.B. SENGUPTA ROAD BEHALA KOLKATA- 700 034 2. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 3 RESPECTFULLY FOLLOWING THE SAME AND WHILE GIVING LIBERTY TO THE PARTIES AS PER PARA 8 OF THE ORDER OF THE AHME DABAD BENCH OF THE ITAT (SUPRA), WE DISMISS THIS APPEAL OF THE REVENUE AS WITHDRAWN. IN THE RESULT, APPEAL OF THE REVENUES IS DISMISSED. KOLKATA, THE 28 TH DAY OF AUGUST, 2019. [ P.M. JAGTAP JUDICIAL MEMBER VICE PRESIDENT OPY OF THE ORDER FORWARDED TO: ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE -28, KOLKATA KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 1421/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. SHIMPHO EXPORTS RESPECTFULLY FOLLOWING THE SAME AND WHILE GIVING LIBERTY TO THE PARTIES AS DABAD BENCH OF THE ITAT (SUPRA), WE DISMISS SD /- P.M. JAGTAP ] VICE PRESIDENT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES