DCIT, CIR-8(1), KOLKATA, Kolkata V. M/s Gayson & Co. Pvt. Ltd., Kolkata

ITA 1436/KOL/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3406 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 04-12-2015
• Court: TRIBUNAL
• Department Lawyers: SARFARAZUT TAUHEEDJCIT
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, KO LKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM] ITA NOS.1436&1437/KOL/2015 ASSESSMENT YEARS : 2011-12&2012-13 D.C.I.T., CIRC.8(1) .-VERSUS- M/S.GAYSON & CO.PVT.LTD. KOLKATA KOLKATA (PAN:AABCG0158R) (APPELLANT ) (RESPONDENT) FOR THE APPELLANT : SHRI SARFARAZUT TAUHEED,,JCIT, SR.DR FOR THE RESPONDENT : NONE. DATE OF HEARING : 20.01.2016. DATE OF PRONOUNCEMENT : 20.01.2016. ORDER PER SHRI N.V.VASUDEVAN, JM THESE ARE APPEALS BY THE REVENUE DIRECTED AGAINST T HE ORDERS DATED 02.09.2015 OF CIT(A)-20, KOLKATA RELATING TO A.Y.20 11-12 & 2012-13. 2. RECENTLY THE CBDT HAS ISSUED CIRCULAR NO. 2 1/2015, DATED 10TH DECEMBER, 2015, WHEREBY THE MONETARY LIMITS FOR FILING OF AP PEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE SUPREME COURT HAVE BEEN INCREASED AS MEASURE FOR REDUCING LITIGATION. THE REVISED MONETARY LIMITS LAID DOWN IN PARA-3 OF THIS CIRCULAR AND THE MANNER OF C OMPUTING TAX EFFECT AS LAID DOWN IN PARA-4 OF THIS CIRCULAR ARE AS FOLLOWS: 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED I N CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: - SL. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS) 1. BEFORE APPELLATE TRIBUNAL 10,00,000/- 2. BEFORE HIGH COURT 20,00,000/- 3. BEFORE SUPREME COURT 25,00,000/- ITA NOS.1436&1437/KOL/2015 M/S. GAYSON & CO.PVT .LTD. A.YRS.2011-12&2012-13 2 IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE. FILIN G OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CH ARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'D ISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS T HE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RE TURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX O N DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 3. IN PARA-10 OF THE SAID CIRCULAR IT HAS BEEN FUR THER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RE LEVANT PARA-10 OF THE CIRCULAR READS THUS: 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSE D. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4. IN THE PRESENT CASE, THE TAX EFFECT IN THESE AP PEALS BY THE REVENUE IS LESS THAN RS.10,00,000/-. THOUGH THESE APPEALS HAD BEEN FILE D BY THE REVENUE ON 04.12.2015 AND WAS WITHIN THE MONETARY LIMIT IN THE FORM OF TA X EFFECT FOR FILING APPEALS BEFORE TRIBUNAL, IN VIEW OF PARA-10 OF THE CIRCULAR OF CBD T, EVEN SUCH APPEALS WILL BE GOVERNED BY THE NEW MONETARY LIMITS LAID DOWN IN TH E CBDT CIRCULAR NO.21/2015 REFERRED TO ABOVE. 5. IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED B Y CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX COURT IN T HE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATION LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF THE APE X COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THAT WHEN A CI RCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUND BY IT AND CA NNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY TO THE TERMS OF TH E STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT CIRCULAR NO.21 DATED 10.12.2015. ITA NOS.1436&1437/KOL/2015 M/S. GAYSON & CO.PVT .LTD. A.YRS.2011-12&2012-13 3 6. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEALS F ILED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CONTRARY T O THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEALS FILED BY THE DEP ARTMENT ARE DISMISSED IN LIMINE . 7. IN THE RESULT THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.01.2016. SD/- SD/- [M.BALAGANESH] [N.V.VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 20.01.2016. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M/S. GAYSON & CO.PVT. LTD., 18C, EVEREST, 46A, C HOWRIGHEE ROAD, KOLKATA-700071. 2 THE D.C.I.T., CIRCLE-8(1), KOLKATA. 3. THE CITCENTRAL-I, KOLKATA, 4. THE CIT(A)-20, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES