ITO, Wd.-2(4), Nashik V. Smt. prabhavati Umesh bhoir, Nashik

ITA 1605/PUN/2007

• Counselvise Citation: 160524514 RSA 2007
• Duration Of Justice: 3 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 06-12-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K AMBASTHA
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI G.S. PANNU (AM) SR.NO ITA NO. ASSTT. YEAR APPELLANT V/S. RESPONDENT 1. 1605/PN/2007 2003 - 04 I.T.O, WARD 2(4), NASHIK SMT PRABHAVATI UMESH BHOIR, 4384, BHOIRWADA, GAJANAN CHOWK, PANCHAVATI, NASHIK 2. 1606/PN/2007 2003 - 04 - DO - S MT. RAMESHWARI AMARSINGH BHOIR, 4384, BHOIRWADA, GAJANAN CHOWK, PANCHAVATI, NASHIK 3. 1607/PN/2007 2003 - 04 - DO - SMT REKHA MURLIDHAR BHOIR, 4384, BHOIRWADA, GAJANAN CHOWK, PANCHAVATI, NASHIK 4. 1608/PN/2007 2003 - 04 - DO - SMT SANGEETA SURESH BHOIR, 4384, BHOIRWADA, GAJANAN CHOWK, PANCHAVATI, NASHIK 5. 1609/PN/2007 2003 - 04 - DO - SMT SHRUTI SHAILESH BHONGE, FLAT NO.2, SUSHILA APARTMENT, NATKAR LANE, PANCHAVATI, NASHIK 6. 1610/PN/2007 2003 - 04 - DO - SMT DHANASHREE SUDHAKAR DEORE, CHINTAMANI PARK, BHAVIK NAGAR, GANGAPUR ROAD, NASHIK 7. 1611/PN/2007 2003 - 04 - DO - SMT REKHA KASHINATH MULZEER NASHIK, LOKMANYA NAGAR, NEAR PAVAN NAGAR, NEW CIDCO, NASHIK 8. 1612/ PN/2007 2007 - 8 - DO - SMT CHABHAI GOVIND PORJE, JAIPRAKASH SOCIETY, JAIL ROAD, SHIVAJI NAGAR,NASHIK ROAD 9. 1613/PN/2007 2003 - 04 - DO - SMT ASHA CHANDRAKANT SONAWANE, II.NO.4384, BHOIRWADA, GAJANAN CHOWK, PANCHAVATI, NASHIK 10. 1614/PN/2007 2003 - 04 - DO - SMT SHAKUNTALA SAKHARAM RAYATE, H.NO.4286, GEETA NIWAS,PANCHAVATI, NASHIK ITA . NOS.1605 TO 1609 & 1611 TO 1622/PN/2007 SMT. DHANASHREE SUDHAKAR DEORE A.YS.2003-04 ETC. PAGE OF 6 2 11. 1615/PN/2007 2003 - 04 - DO - SMT PARIDHA HIRAMAN PORJE, JAIKISAN APT., JAIL ROAD, SHIVAJI NAGAR, NASHIK ROAD, 12. 1616/PN/2007 2003 - 04 - DO - SMT SUNITA KAILASH PARDESHI, H NO. 52, SANJAY NAGAR MAJOORWADI, VALMIK NAGAR,PANCHAVATI, NASHIK-3 13. 1617/PN/2007 2003 - 04 - DO - SMT SHANTABAI ISHWAR PARDESHI, MAJOORWADI, VALMIK NAGAR,PANCHAVATI, NASHIK-3 14. 1618/PN/2007 2003 - 04 - DO - SMT CHANDARANI CHANDRAKANT PARDESHI, 12, JAIPRAKASH SOCIETY, JAIL ROAD, SHIVAJI NAGAR,NASHIK ROAD 15. 1619/PN/07 2003 - 04 - DO - SMT SUNITA SHIVAJI MULZEER, LOKMANYA NAGAR, NEAR PAVAN NAGAR, NEW CIDCO, NASHIK 16. 1620/PN/2007 2003 - 04 - DO - SMT VINITA SANJAY MANDLIK, PLOT NO.97/98, VINU NAGAR, OPP. BASERA PARK, KAMATWADE ROAD, NASHIK-10 17. 1621/PN/2007 2003 - 04 - DO - SMT SUSHMA KISAN KATARE, GOREWADI, SHASTRI NAGAR NASHIK ROAD, 18. 1622/PN/2007 2003 - 04 - DO - SMT RAGINI SUDHAKAR DEORE, SUNDER APARTMENT, MANGAL NAGAR, GANGAPUR ROAD, NASHIK APPELLANTS BY : SHRI S.K. AMBASTHA RESPONDENT BY : NONE ORDER PER BENCH ITA . NOS.1605 TO 1609 & 1611 TO 1622/PN/2007 SMT. DHANASHREE SUDHAKAR DEORE A.YS.2003-04 ETC. PAGE OF 6 3 IN THESE APPEALS PREFERRED BY THE REVENUE, THE FIR ST APPELLATE ORDERS HAVE BEEN QUESTIONED ON THE GROUND THAT THE LD CIT(A) HAS ERRED IN DIRECTING THE A.O. TO ALLOW THE CREDIT FOR TH E TDS CLAIMED BY THE ASSESSEES. 2. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW, WE FIND THAT DIFFERENT ASSESSEES ARE INVOLVED IN THESE AP PEALS AND EACH APPEAL IS HAVING TAX EFFECT BELOW RS. 2,00,000/- THE THEN PE CUNIARY LIMIT PRESCRIBED BY THE CBDT FOR NOT PREFERRING THE APPE AL BY THE REVENUE AGAINST THE FIRST APPELLATE ORDER BEFORE THE TRIBUN AL. NOW THIS LIMIT HAS BEEN INCREASED TO RS.3,00,000/-. A PRELIMINARY Q UESTION WAS RAISED BY THE BENCH AGAINST THE VERY MAINTAINABILITY OF THES E APPEALS BEFORE THE TRIBUNAL. 3. THE LD. D.R DID NOT DISPUTE THIS MATERIAL FACT T HAT THE TAX EFFECT IN EACH OF THE APPEALS IS BELOW RS. 2,00,000/-. HE, H OWEVER, SUBMITTED THAT A SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN T HE ISSUE RAISED IN THESE APPEALS, HENCE THESE ARE MAINTAINABLE AS PER THE DE CISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. TANJORE PE RMANENT BANK LTD (1984) 149 ITR 788 (MAD.). 4. WE FIND FROM THE ORDERS OF THE AUTHORITIES BELOW THAT THE A.O. WITHDREW THE CREDIT GIVEN FOR THE TDS CLAIMED BY THE ASSESSEES U/S. 154 OF THE ACT. THE ASSESSEES HAD FILED TDS CERTIFICA TES ALONG WITH RETURN OF INCOME CLAIMING THE CREDIT OFF THE TAX DEDUCTED AT SOURCE BY M/S. NAZRANA ENTERPRISES. THE A.O. STATED THAT T.D.S. C ERTIFICATES FILED BY THE ASSESSEES ARE NOT CORRECT AND CREDIT WAS WRONGLY GI VEN BY HIM, HENCE WITHDREW THE SAME BY PASSING AN ORDER U/S. 154 OF THE ACT. THE ITA . NOS.1605 TO 1609 & 1611 TO 1622/PN/2007 SMT. DHANASHREE SUDHAKAR DEORE A.YS.2003-04 ETC. PAGE OF 6 4 LD.CIT(A) AFTER DISCUSSING THE FACTS OF THE CASE, H ELD THAT IN THE ABSENCE OF ANY SPECIFIC EVIDENCE BROUGHT ON RECORD TO SHOW THAT THE TDS CERTIFICATE WAS NOT GENUINE, THE CREDIT CANNOT BE D ENIED AND THAT THE ASSESSEES/APPELLANTS SHOULD NOT BE PUNISHED FOR THE DEFAULT OF THE TAX DEDUCTOR. THE LD. CIT(A) HELD FURTHER THAT IN THE PRESENT CIRCUMSTANCES OF THE CASE, THE ACTION OF THE A.O. U/S. 154 OF THE ACT CAN NOT BE JUSTIFIED AS THERE IS NO MISTAKE APPARENT FROM THE RECORD. 5. ON PERUSAL OF THE ORDERS OF THE AUTHORITIES BELO W, WE DO NOT FIND INVOLVEMENT OF SUBSTANTIAL QUESTION OF LAW IN THE P RESENT APPEALS TO BE ADJUDICATED UPON BY THE TRIBUNAL AS FINDING OF THE LD. CIT(A) IS PURELY BASED UPON THE FACTS AND CIRCUMSTANCES OF THE PRE SENT APPEALS. IN ITS DECISION IN THE CASE OF CIT VS. PITHWA ENGINEERING WORKS (2005) 276 ITR 516(BOM.), THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT HAS BEEN PLEASED TO HOLD THAT THE CBDT INSTRUCTION DATED 27. 3.2000 REFLECT THE POLICY DECISION TAKEN BY THE BOARD NOT TO RAISE QUE STIONS OF LAW WHERE THE TAX EFFECT IS LESS THAN THE PRESCRIBED AMOUNT AND T HE SAME IS BINDING ON THE REVENUE. BASED ON THE SAME OBJECT THE CBDT HA S ISSUED SEVERAL INSTRUCTIONS TIME TO TIME, LIKE INSTRUCTION NO. 2/2 005 DATED 24.10.2005, INSTRUCTION DATED 5.6.07, ETC., AND RECENTLY INSTRU CTION NO. 5 OF 2008 DATED 15.5.2008. THE HONBLE BOMBAY HIGH COURT IN ITS RECENT DECISION IN THE CASE OF CIT VS. MADHUKAR INAMDAR (HUF) (2009 ) 318 ITR 149 (BOM.) HAS BEEN PLEASED TO HOLD THAT NOW IN VIEW OF INSERTION OF PROVISION OF S.268A BY THE FINANCE ACT, 2008 W.E.F. 1.4.1999 IN THE I.T. ACT 1961, NO PREJUDICE COULD BE CAUSED TO THE REVENUE EVEN IF THE CASES INVOLVING LEGAL ISSUES OF RECURRING NATURE ARE WITHDRAWN, SI NCE THE NEWLY INSERTED PROVISION TAKES CARE OF THE ADVERSE EVENTUALITY WHI CH COULD HAVE BEEN PUT AGAINST THE REVENUE. ITA . NOS.1605 TO 1609 & 1611 TO 1622/PN/2007 SMT. DHANASHREE SUDHAKAR DEORE A.YS.2003-04 ETC. PAGE OF 6 5 6. NOW VIDE CBDT INSTRUCTION NO. 3 DATED 9.2.2011, THE MONETARY LIMIT FOR NOT PREFERRING APPEAL BY THE REVENUE TO THE TRIBUNAL HAS BEEN INCREASED UP-TO RS. 3 LACS. IN OTHER WORDS, THE R EVENUE SHALL NOT FILE THE APPEAL AGAINST FIRST APPELLATE ORDER HAVING TAX EFF ECT UPTO RS. 3 LACS. FOLLOWING DECISIONS ARE RELEVANT IN SUPPORT : 1. CIT V/S. MRS. P.S. JAIN & CO., ITR 179/1991, ORD ER DATED 2.8.2010 OF HONBLE BOMBAY HIGH COURT. 2. ITO V/S. SHRI ASHOK G. DHANDHARIAI, ITA NO. 2460/MUM/2010(A.Y. 2005-06), ORDER DATED 28 FEBRUAR Y 2011. 3. CIT V/S. DELHI RACE CLUB LTD., ITA NO. 128/2008, ORDER DATED 3.3.2011 (DELHI HIGH COURT). 7. WE, THUS, RESPECTFULLY FOLLOWING THESE DECISIONS INCLUDING DECISIONS OF HONBLE BOMBAY HIGH COURT IN AFORESAID CASES HAV ING BINDING EFFECT ON THE TRIBUNAL, HOLD THAT THE APPEAL HAVING MONETARY IMPACT BELOW RS. 2 LACS (NOW RS. 3 LACS) IS NOT MAINTAINABLE AS THE AP PEAL HAS BEEN PREFERRED BY THE REVENUE IN VIOLATION OF THE ABOVE STATED GUI DELINES OF THE CBDT. SINCE EACH OF THE APPEALS UNDER CONSIDERATION IS HA VING TAX EFFECT BELOW RS. 2 LACS, THE SAME IS NOT MAINTAINABLE. ALL THE APPEALS INVOLVING DIFFERENT ASSESSEES ARE THUS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30TH A UGUST 2011. SD/- SD/- ( G.S. PA NNU ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE, DATED THE 30TH AUGUST, 2011 ITA . NOS.1605 TO 1609 & 1611 TO 1622/PN/2007 SMT. DHANASHREE SUDHAKAR DEORE A.YS.2003-04 ETC. PAGE OF 6 6 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANTS 2. THE RESPONDENTS 3. THE CIT I, NASHIK 4. THE CIT(A)- II, NASHIK 5. THE D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE