Appeal Details
Counselvise Citation
[2018] 125 COUNSELVISE.COM (IT) 5945 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 11 month(s) 25 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-07-2018
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
C
Assessment Year
2008-2009
Appeal Filed On
05-08-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI A.T. VARKEY, JM & SHRI M. BALAGANESH, AM] ITA NO. &A.Y. (1) REVENUE/REP. BY (2) VS (3) ASSESSEE/PAN/REP. BY (4) 1190/KOL/2016 A.Y.2011-12 ITO, WARD-22(2), KOLKATA, REP. BY SHRI SAURABH KUMAR, ADDL. CIT SR. DR M/S BIJAY PHARMA AADFB 2428 G , REP. BY SHRI ANIL KOCHAR, ADVOCATE 45, RABINDRA SARANI, BURRABAZAR, KOLKATA-700073. 1599/KOL/2016 A.Y.2008-09 DCIT, CIRCLE-11(1), KOLKATA, REP. BY. SHRI SAURABH KUMAR, ADDL. CIT SR. DR M/S LAKE VIEW PROPERTIES LTD. AAACL 5334 P, REP. BY SHRI SUBASH AGARWAL, ADVOCATE ONKAR BHAWAN, 1A, JANKI SHAH ROAD, HASTINGS, KOLKATA-700019. 1436/KOL/2016 A.Y.2007-08 ITO, WARD-34(3), KOLKATA, REP. BY SHRI SAURABH KUMAR, ADDL. CIT SR. DR M/S CLASSIC INTERNATIONAL AACFC 1787 G , REP. BY NONE. 23A, N.S. ROAD, ROOM NO. 42, 10 TH FLOOR, KOLKATA-1. 1033/KOL/2015 A.Y.2012-13 DCIT, CIRCLE-3(1), SILIGURI REP. BY SHRI SAURABH KUMAR, ADDL. CIT SR. DR M/S NARENDRA TEA CO. (P) LTD. AABCN 0123 D , REP. BY SHRI SUBASH AGARWAL, ADVOCATE 2A, GANESH CH. AVENUE, 5 TH FLOOR, QUARTER NO. 7, KOLKATA-700013. 1263/KOL/2016 A.Y.2007-08 ITO, WARD-25(1), KOLKATA REP. BY SHRI SAURABH KUMAR, ADDL. CIT SR. DR SRI MEGHNATH PODDAR AHVPP 0488 R , REP. BY NONE, 5/41/A, CHITTARANJAN COLONY, KOLKATA-700032. IT(SS)A. NO. 67/KOL/2015 BLOCK PERIOD 1988-89 TO 1997-98 & 01.04.1998 TO 29.10.1998 ITO, WARD-31(1), KOLKATA REP. BY SHRI SAURABH KUMAR, ADDL. CIT SR. DR SURENDRA KUMAR SHARMA AKJPS 3480 K , REP. BY. NONE 11/12, BANGALAXMI ABASAN, CHECK POST- DESHODRONE, RAJARHAT, GOPALPUR, NORTH 24, PARGANAS. 690/KOL/2015 A.Y.2011-12 ITO(E), WARD-1(3), KOLKATA REP. BY. SHRI SAURABH KUMAR, ADDL. CIT SR. DR ST. JOANS EDUCATIONAL TRUST AABTS 5823 N , REP. BY. SHRI AMIT AGARWAL, ADVOCATE CD-164, SECTOR-I, SALT LAKE CITY, KOLKATA-700064. 1610/KOL/2014 A.Y. 2008-09 ACIT, CIRCLE-42, KOLKATA, REP. BY SHRI SAURABH KUMAR, ADDL. CIT SR. DR M/S ROY SONS AAEFR 2637 L , REP. BY. NONE 41/1A, COSSIPORE ROAD, COSSIPORE, KOLKATA-36. 1710&1711/KOL/2016 A.Y. 2008-09 & 2009-10 DCIT, CIRCLE-4(2), KOLKATA, REP. BY. SHRI SAURABH KUMAR, ADDL. CIT SR. DR M/S MILLENNIUM STOCK BROKING (P) LTD. AACCM 2853 Q , REP. BY SHRI AAKASH KHETAN, AR 1, R. N. MUKHERJEE ROAD, 1 ST FLOOR, ROOM NO. 9, KOLKATA-700001. 964/KOL/2016 A.Y. 2010-11 ITO, WARD-7(2), KOLKATA REP. BY. SHRI SAURABH KUMAR, ADDL. CIT SR. DR M/S PKS COMMERCIAL (P) LTD. AACCP 6325 J , REP. BY. SHRI B.B. PAYRA 7, CAMAC STREET, AZIMGUNJ HOUSE, 4 TH FLOOR, KOLKATA-700017. DATE OF HEARING : 31.07.2018 DATE OF PRONOUNCEMENT: 31.07.2018 2 2 ORDER PER M. BALAGANESH, AM: 1. THESE APPEALS OF THE REVENUE ARISE OUT OF THE VA RIOUS ORDERS OF THE LEARNED CIT(A) AGAINST THE ORDERS OF ASSESSMENT FRAMED U/S 143(3) / 144 / 154 / 158BC(C )/251/254 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT). 2. RECENTLY THE CBDT HAS ISSUED CIRCULAR NO. 3 /2018 DATED 11.07.2018, WHEREBY THE MONETARY LIMITS FOR FILING OF APPEALS BY THE D EPARTMENT 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 COMPUT ING 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/SLPS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS) 1. BEFORE APPELLATE TRIBUNAL 20,00,000/- 2. BEFORE HIGH COURT 50,00,000/- 3. BEFORE SUPREME COURT 1,00,00,000/- IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE . FILING 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 RESP ECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER R EFERRED TO AS 'DISPUTED ISSUES). FURTHER, 'TAX EFFECT' SHALL BE TAX INCLUD ING APPLICABLE SURCHARGE AND CESS. HOWEVER, THE TAX WILL NOT INCLUDE ANY INTERES T THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOM E, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDU CED IN THE ORDER TO BE APPEALED AGAINST. 3 3 3. IN PARA-13 OF THE SAID CIRCULAR IT HAS FURTHER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RE LEVANT PARA-13 OF THE CIRCULAR READS THUS: 13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL AL SO APPLY RETROSPECTIVELY TO PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. P ENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRA WN/NOT PRESSED. 4. THE LD. DR FAIRLY CONCEDED THAT THE TAX EFFECT IN ALL THESE APPEALS FILED BY THE REVENUE ARE LESS THAN RS. 20,00,000. THOUGH THESE APPEALS HAD BEEN FILED BY THE REVENUE ON VARIOUS DATES AND WERE WITHIN THE MONETA RY LIMIT IN THE FORM OF TAX EFFECT FOR FILING APPEALS BEFORE TRIBUNAL, IN VIEW OF PARA -13 OF THE CIRCULAR OF CBDT, EVEN SUCH APPEALS WILL BE GOVERNED BY THE NEW MONETARY L IMITS LAID DOWN IN THE CBDT CIRCULAR NO.3/2018 REFERRED TO ABOVE. 5. IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX CO URT IN THE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATION L TD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISI ONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THA T WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUN D BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY T O THE TERMS OF THE STATUTE. 5.1. IN THE EVENT, THE REVENUE FINDS AT A LATER POI NT OF TIME THAT THE TAX EFFECT IN THE APPEAL IS MORE THAN RS.20 LAKHS OR DESPITE LOW TAX EFFECT THE APPEAL OF THE REVENUE IS MAINTAINABLE, THE REVENUE IS AT LIBERTY TO MOVE TH IS TRIBUNAL FOR RECALLING OF THIS ORDER. 4 4 6. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEALS F ILED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDERS OF THE LD. CIT(A), ARE CONTRARY TO 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 BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 31.07.2018 SD/- SD/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31.07.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- 2. RESPONDENT- 3. CIT(A)- 4. CIT-KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S
