Deputy Commissioner of Income Tax, Circle -Tinsukia , Tinsukia V. Shri Kamakhya Borthakur, Tinsukia

ITA 164/GTY/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0529 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 13-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH : GUWAHATI [BEFORE SHRI P.M.JAGTAP, AM & SHRI A. T. VARKEY, J M] SL. NO. ITA NO. & A.Y. (1) REVENUE/REP. BY (2) VS (3) ASSESSEE/PAN/REP. BY (AS PER POWER FILED) (4) 1. 279/GAU/2013 AY. 2006-07 I.T.O., WARD-4, AGARTALA REP. BY SHRI. SANDEEP SENGUPTA, JCIT SHRI SANTOSH CH.SAHA, C/O M/S SMART SAKUNATALA ROAD, AGARTALA, TRIPURA (W) PAN: AMLPS 8651A, REP. BY SHRI SANJAY MODY, FCA 2. 164/GAU/2016 AY. 2012-13 ACIT, CIRCLE-TINSUKIA, TINSUKIA, ASSAM REP. BY SHRI. SANDEEP SENGUPTA, JCIT SRI KAMAKHYA BORTHAKUR, A.T.ROAD, P.O.HIJUGURI, TINSUKIA (ASSAM). PAN : AEAPB3423Q REP. BY NONE DATE OF HEARING: 17.08.2018 DATE OF PRONOUNCEMENT: 17.08.2018 ORDER PER BENCH: THESE 2 APPEALS OF THE REVENUE ARISE OUT OF THE ORD ERS OF THE LEARNED CIT(A) AGAINST THE ORDERS OF ASSESSMENT FRAMED U/S 147 / 143(3) / 144 ETC. OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET ITSELF, THE LD. DR HAS BROUGHT TO OUR ATTENTION TO THE FACT THAT THE REVENUE HAS PREFERRED THESE AFORESAID APPEALS WHICH HAVE TAX EF FECT OF LESS THAN RS. 20 LACS, THEREFORE, THE REVENUE DOES NOT INTEND TO PRESS THE APPEALS IN THE LIGHT OF THE CBDT CIRCULAR NO.3/2018 DATED 11.07.2018 WHEREIN CBDT HAS DIRECTED AS UNDER: 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 CHARGEABLE HAD SUC H TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEA L IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'DISPUTED ISSUES). FURTHER, 'TAX EFFECT' SHALL BE TAX INCLUDING APPLICABLE SURCHARGE AND CESS. HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THER EON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTERES T IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTERES T SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LO SS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. I N CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE O RDER TO BE APPEALED AGAINST. 2 2 3. IN PARA-13 OF THE SAID CIRCULAR IT HAS FURTHER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RELEVANT PARA-13 O F 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 ALSO APPLY RETROSPECTI VELY TO PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SP ECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. 4. IN THE PRESENT CASE, THE TAX EFFECT IN THESE A PPEALS BY THE REVENUE IS LESS THAN RS.20,00,000/-. THOUGH THESE APPEALS HAD BEEN FILED BY THE REVENUE ON VARIOUS DATES AND WERE WITHIN THE MONETARY 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 LIMITS 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 COURT IN THE CA SE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATION LTD. REPORTED IN 267 ITR 272 WHEREIN TH EIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THAT WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE R EVENUE IS BOUND 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 MOR E THAN RS.20 LAKHS OR DESPITE LOW TAX EFFECT THE APPE AL OF THE REVENUE IS MAINTAINABLE, THE REVENUE IS A T LIBERTY TO MOVE THIS TRIBUNAL FOR RECALLING OF THI S ORDER. 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 POLIC Y DECISION OF THE DEPARTMENT AND AS SUCH THE APPEALS FILED BY THE DEPARTMENT ARE DISMISSED IN LIMINE . 7. IN THE RESULT, THE APPEALS BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OP EN COURT ON 17.08.2018. SD/- SD/- (A.T.VARKEY) (P.M.JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 17 TH AUGUST, 2018 RG. SR. P.S 3 3 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2 RESPONDENT 3. THE CIT(A), GUWAHATI 4. 5. CIT GUWAHATI DR, GUWAHATI BENCH, GUWAHATI. /TRUE COPY, BY ORDER, SR.PRIVATE SECRETARY(ON TOUR) ITAT, GUWAHATI BENCH, GUWAHATI