Asst. Commissioner of Income-tax, Pune V. Rohan Builders and Developers Pvt. Ltd., Pune

ITA 1447/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9839 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 18-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: R G NAHAR
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES, B PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, J.M. AND SHRI R.K. PANDA, A.M. I.T.A. NO. 1447/PN/2011: A.Y. 2002-03 THE ASSTT. CIT CIR. 2(2) PUNE .. APP ELLANT VS. ROHAN BUILDERS & DEVELOPERS P.LTD 813 BHANDARKAR INSTITUTE ROAD, PUNE PAN AABCR 8171 R .. RESPONDENT APPELLANT BY: SHRI S.K. SINGH RESPONDENT BY: SHRI R.G. NAHAR DATE OF HEARING : 12-11-2012 DATE OF PRONOUNCEMENT: 12-11-2012 ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-III PUNE DATED 30-12-2010 ON THE GROU ND OF ALLOWING THE PROVISIONS CLAIMED BY THE ASSESSEE. 2. AT THE OUTSET OF HEARING, THE LEARNED REPRESENT ATIVE FOR THE ASSESSEE RAISED A PRELIMINARY OBJECTION BY POIN TING 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 ITA NO. 1447/PN/2011 ROHAN BUILDERS & DEVELOPERS A.Y. 2002-03 2 ADDITIONS DELETED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) 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 APPEAL IS BELOW RS 3 LAKHS. SUCH FACTUAL MATRIX HAS NOT BEEN CONTESTED BY THE LEARNED DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE, THOUGH THE RELIEF ALLOWED BY THE COMMISSIO NER OF INCOME-TAX (APPEALS) IS SOUGHT TO BE ASSAILED ON ME RITS. 3. WE FIND THAT IN A RECENT DECISION, THE CO-ORDINA TE BENCH OF ITAT MUMBAI, IN THE CASE OF ITO V SHRI ASHOK G. DHANDHARIAI, MUMBAI IN ITA NO2460/MUM/2010 DATED 28.2.2011 HELD THAT THE REVISED INSTRUCTIONS DATED 9.2.2011 (SUPRA) ARE APPLICABLE TO THE PRESENT CASES ALSO, ALTHOUGH SUCH APPEALS HAVE BEEN FILED ON A PRIOR DATE. 4. IN VIEW OF THE PRECEDENT BROUGHT OUT BY THE LEAR NED REPRESENTATIVE FOR THE RESPONDENT, FACTUALLY THE DEPARTMENTAL APPEAL IS LIABLE TO BE CONSIDERED TO H AVE 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 ENGINEER ING WORKS 276 ITR 519 (BOM) FOUND IT APPROPRIATE TO DIS MISS THE DEPARTMENTAL APPEAL ON THE GROUND THAT TAX EFFECT I S LESS THAN RS 3 LAKHS, EVEN IN A CASE WHERE THE DEPARTM ENTAL APPEALS WAS FILED PRIOR TO THE DATE OF THE CBDT INS TRUCTION ITA NO. 1447/PN/2011 ROHAN BUILDERS & DEVELOPERS A.Y. 2002-03 3 DATED 9.2.2011 (SUPRA). THE FOLLOWING DISCUSSION IN THE ORDER IS WORTHY 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 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 ITA NO. 1447/PN/2011 ROHAN BUILDERS & DEVELOPERS A.Y. 2002-03 4 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 INSTRUCTION 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. FOLLOWING THE AFORESAID PRECEDENT, THE PRESENT APPE AL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED IN VIEW OF CB DT INSTRUCTION NO. 3 DATED 9.2.2011 (SUPRA) AS THE TAX EFFECT WITH RESPECT TO THE QUANTUM OF RELIEF ALLOWED BY THE COM MISSIONER OF INCOME-TAX (APPEALS) IS BELOW RS 3 LAKHS AND IT HAS NOT BEEN SHOWN THAT THE APPEAL FALLS UNDER ANY OF THE E XCEPTIONS PROVIDED IN PARA 8 OF THE CBDT INSTRUCTION (SUPRA). WE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL BY THE REVENUE IS DISM ISSED. DECISION IS PRONOUNCED IN THE OPEN COURT ON 12-11-2 012. (R.K. PANDA (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: ___ NOVEMBER 2012 ANKAM ITA NO. 1447/PN/2011 ROHAN BUILDERS & DEVELOPERS A.Y. 2002-03 5 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-III PUNE 4. CIT-III PUNE 5. THE D.R, PUNE BENCH TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY ITAT, PUNE BENCH, PUNE