ITO, Ward-10(1), Kolkata, Kolkata V. M/s Aakruti Infrastructure Private Limited, Kolkata

ITA 1488/KOL/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1174 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 15-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDAR JCITSRDR
• Assessee Lawyers: JHAJHARIA
• Keywords: Unexplained cash credit; Tax effect
• Section: 68; 143(3)

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.1488/KOL/2016 ASSESSMENT YEAR: 2012-13 INCOME TAX OFFICE, WARD-10(1), P- 7,CHOWRINGHEE SQUARE, 3 RD FLOOR, KOLKATA-69 / V/S . M/S AAKRUTI INFRASTRUCTURE PVT. LTD. 25, CANAL STREET, KOLKATA-700 048 [ PAN NO.AAJCA 5587 A ] /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SANKAR HALDAR, JCIT-SR-DR /BY RESPONDENT SHRI . JHAJHARIA, FCA /DATE OF HEARING 21-06-2019 /DATE OF PRONOUNCEMENT 13-09-2019 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKATAS O RDER DATED 17.05.2016 PASSED IN CASE NO.702/CIT(A)-4/WARD-10(1)/14-15 INVOLVING PROCEEDINGS 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. 2. IT EMERGES AT THE OUTSET THAT THE REVENUE HAS RA ISED SOLE SUBSTANTIVE ISSUE U/S68 OF SHARE APPLICATION / PREMIUM OF 1,03,00,000/- TREATED AS UNEXPLAINED CASH CREDITS U/S 68 OF THE ACT. THE TAX EFFECT ON THE DI SPUTED ADDITION BEFORE US IS LESS THAN RS. 50 LACS IN CASES I.E. LESS THAN THE PRESCR IBED REVISED THRESHOLD LIMIT IN ITA NO.1488/KOL/2016 ASSESSMENT YEAR 2012-13 ITO WD-10(1), KOL. VS. M/S AAKRUTI INFR ASTRUCTURE PVT. LTD. PAGE 2 CBDTS LATEST CIRCULAR NO17/2019 DATED 08.08.2019. IT WILL BE PERTINENT TO REPRODUCE THE RELEVANT PORTION OF THE SAID CIRCULAR AS FOLLOWS:- 2. AS A STEP TOWARD FURTHER MANAGEMENT OF LITIGATI ON, IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEAL S IN INCOME-TAX CASES BE ENHANCED FURTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY, THE TABLE FOR MONETARY LIMIT S SPECIFIED IN PARA 3 OF THE CIRCULAR SHALL READ AS FOLLOWS: S.NO. APPEALS/SLPS IN INCOME-TAX MATTERS MONETARY L IMIT (RS.) 1. BEFORE APPELLATE TRIBUNAL 50,00,000 2. BEFORE HIGH COURT 1,00,00,000 3. BEFORE SUPREME COURT 2,00,00,000 3.1 WE FIND THAT INTENTION BEHIND THE CIRCULAR NO17 /2019 DATED 08.08.2019 NEEDS TO BE UNDERSTOOD IN THE FOLLOWING PERSPECTIVE:- 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FILING OF APPEALS IN SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGHER APPELLATE AUTHOR ITIES FOR EACH ASSESSMENT YEAR VIS--VIS WHERE COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEAR IS PASSED, PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY TH E FOLLOWING PARA: 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX E FFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED IS SUES IN THE CASE OF EVERY ASSESSEE. IF, THE CASE OF AN ASSESSEE, THE DI SPUTED 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 SPECIFIE D IN PARA 3 . NO. APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT Y EAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPEC IFIED IN PARA 3. FURTHER, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COU RT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT Y EAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENTS YEAR, NO APPEAL SHALL BE FILED 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 WHE RE A COMPOSITE ORDER/JUDGMENT INVOLVES MORE THAN ONE ASSESSEE, EAC H ASSESSEE SHALL BE DEALT WITH SEPARATELY. 3.2. ON PERUSAL OF THE CIRCULAR NO. 17/2019 DATED 0 8.08.2019 AND THE MATERIALS AVAILABLE ON RECORD, WE DO NOT SEE THESE CASE(S) FA LLING UNDER ANY OF THE EXCEPTIONS CONTEMPLATED IN THE SAID CIRCULAR PER SE . WE ALSO FIND THAT THIS CIRCULAR MAKES IT VERY CLEAR THAT THE REVISED MONETARY LIMITS SHALL APPLY RETROSPECTIVELY TO PENDING APPEALS AS WELL. H ONBLE APEX COURT IN COMMISSIONER OF CUSTOMS VS IND IAN OIL CORPORATION LTD REPORTED IN 267 ITR 272 (SC) HAS SETTLED THE LAW THAT CBDTS CIRCULARS ARE VERY MUCH ITA NO.1488/KOL/2016 ASSESSMENT YEAR 2012-13 ITO WD-10(1), KOL. VS. M/S AAKRUTI INFR ASTRUCTURE PVT. LTD. PAGE 3 BINDING ON REVENUE AUTHORITIES. WE THUS HOLD THAT T HIS REVENUES APPEAL RAISING IDENTICAL SOLE ISSUE OF 1,03,00,000/- DESERVES TO BE DISMISSED IN TERMS OF LOW TAX EFFECT. WE MAKE IT CLEAR THAT IT SHALL VERY MUCH OP EN FOR THE REVENUE TO SEEK NECESSARY RECTIFICATION IN CASE IT IS FOUND THAT AN Y OF THE APPEAL INVOLVE OPERATIONS OF EXCEPTION CLAUSES IN THE TAX EFFECT CIRCULAR AS PER LAW. 4. THIS REVENUES APPEAL IS DISMISSED FOR INVOLVING LOWER THAN THE PRESCRIBED MINIMUM TAX EFFECT. ORDER PRONOUNCED IN OPEN COURT ON 13/09/2019 SD/- SD/- ( &) (( &) (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS ) - 13/09/2019 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-10(1), P-7,CHOWRINGHEE SQUARE, 3 RD FL. KOLKATA-69 2. /RESPONDENT-M/S AAKRUTI INFRASTRUCTURE PVT. LTD., 2 55, CANAL ST, KOLKATA-48 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . ((, , , /DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ ,,