The Deputy Comm. of Income Tax , Patan Cir. Patan, Patan V. M/s Visal Roadlines Harij, Patan

ITA 1640/AHD/2005

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0320 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-09-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 17-06-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH
• Keywords: Question of law; Tax effect; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER DATE OF H EARING : 08/09/09 DRAFTED ON: 08/09/09 ITA NO.1640/AHD/2005 ASSESSMENT YEAR : 2001-02 THE DY.CIT PATAN CIRCLE PATAN (NORTH GUJARAT) VS. M/S.VISAL ROADLINES HARIJ DIST.PATAN PAN/GIR NO. : AACFV 4670 K (APPELLANT) .. (RESPONDENT) APPELLANT BY : SMT. NEETA SHAH, DR RESPONDENT BY: SHRI MANISH J.SHAH O R D E R PER D.C.AGRAWAL , ACCOUNTANT MEMBER :- THIS IS REVENUES APPEAL AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-XXI, AHMEDABAD DATED 07/03/2005 PASS ED FOR ASSESSMENT YEAR 2001-02, BY RAISING FOLLOWING GROUN DS:- 1. THE CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRECTING THE ASSESSING OFFICER TO DELETE THE ADDIT ION OF RS.1,80,000/- MADE ON ACCOUNT OF CLAIM OF LOSS OF C ASH. 2. THE CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRECTING THE ASSESSING OFFICER TO DELETE THE ADDIT ION OF RS.50,000/- MADE OUT OF ROLLER EXPENSES. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(APPEALS) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. ITA NO.1640/AHD /2005 DCIT VS. VISAL ROADLINES HARIJ ASST.YEAR - 2001-02 - 2 - 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LEARNED CIT(APPEALS) MAY BE SET ASIDE AND THAT OF THE ASSE SSING OFFICER BE RESTORED TO THE ABOVE EXTENT. 2. AT THE OUTSET, A QUERY WAS RAISED BY THE BENCH A S TO THE MAINTAINABILITY OF THE APPEAL, IN VIEW OF RECENT CB DT CIRCULAR RESTRICTING FILING OF APPEAL BY THE REVENUE, THE LE ARNED DR DID NOT CONTROVERT THE SAME, AND STATED THAT THE TAX EFFECT IN THE PRESENT CASE IS BELOW THE TAX LIMIT PRESCRIBED THE CBDT. LEARN ED COUNSEL FOR THE ASSESSEE CONTENDS THAT IN VIEW OF THE VARIOUS INSTR UCTIONS OF THE CBDT RESTRICTING THE FILING OF APPEALS BEFORE THE A PPELLATE TRIBUNALS, HIGH COURTS AND SUPREME COURT, THE APPEAL FILED BY THE REVENUE SHOULD BE DISMISSED IN LIMINE . THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THE FOLLOWING CHART REGARDING DETAILS OF TAX EFFECT:- DISPUTED AMOUNT IN DEPARTMENTS APPEAL BREAK-UP TAX 35% SC 12% ON 35% TAX TOTAL TAX ADDITION MADE ON ACCOUNT OF CLAIM OF LOSS OF CASH 1,80,000 63,000 7,560 70,560 ADDITION MADE ON ACCOUNT OF ROLLER EXPENSES 50,000 17,500 2,100 19,600 TOTAL 2,30,000 80,500 9,660 90,160 ITA NO.1640/AHD /2005 DCIT VS. VISAL ROADLINES HARIJ ASST.YEAR - 2001-02 - 3 - 3. AFTER HAVING HEARD BOTH THE PARTIES, CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE CBDT CIRCULARS ON THIS ISSUE, WE FIND THAT ITAT IS TAKING CONSISTENT VIEW IN NUMBER OF CA SES ABOUT ADMISSIBILITY OF APPEAL FILED BY THE REVENUE IN VIE W OF VARIOUS INSTRUCTIONS ISSUED BY CBDT FROM TIME TO TIME, VIZ. INSTRUCTION NO.1979 DATED 27-3-2000, NO.1985 DATED 29-6-2000, N O.6 OF 2003 DATED 17-07-2003, NO.19 OF 2003 DATED 23-12-2003, N O.5/2004 DATED 27-5-2004, NO.2/2005 DATED 24-10-2005 AND NO.5/2007 DATED 16-7-2007 AND LASTLY INSTRUCTION NO.F.NO.279/MISC.1 42/2007-IT DATED 15-5-2008, WHEREIN MONETARY LIMITS FOR FILING DEPARTMENTAL APPEALS (INCOME-TAX MATTERS) AND OTHER CONDITIONS W ERE SPECIFIED, FOR FILING APPEALS BEFORE APPELLATE TRIBUNALS, HIGH COU RTS AND SUPREME COURT. DECISION OF COORDINATING BENCH OF ITAT, RA JKOT IN THE CASE OF ACIT VS. RAJOO ENGINEERS LTD.[2006] 100 ITD 555 , WHEREIN THE HON'BLE BENCH HAS DISMISSED THE REVENUES APPEAL BY HOLDING AS UNDER (HEAD NOTES):- IT IS TRUE THAT THE HIGH COURT DECISION IN COMMISS IONER OF INCOME-TAX V. PITHWA ENGG. WORKS [2005], 276 ITR 51 9 WAS NOT DEALING WITH THE NEW LIMIT OF THE CIRCULAR DATE D 24-10- 2005. IT WAS WITH REFERENCE TO THE EARLIER CIRCULA R WHERE REFERENCE WAS NOT REQUIRED TO BE FILED TO THE HIGH COURT IF THE TAX EFFECT WAS LESS THAN RS.2 LAKHS. THE CONTENTIO N OF THE REVENUE IN THAT CASE WAS THAT RS.2 LAKHS LIMIT WAS INCREASED BY CIRCULAR DATED 27-3-2000 AND PRIOR TO THAT, THE LIM IT WAS ONLY RS.50,000/- AND THE CONTENTION OF THE REVENUE WAS T HAT THE NEW ITA NO.1640/AHD /2005 DCIT VS. VISAL ROADLINES HARIJ ASST.YEAR - 2001-02 - 4 - LIMIT WOULD NOT BE APPLICABLE TO THE OLD REFERENCES . THE HIGH COURT REJECTED THE SAID CONTENTION OF THE REVENUE [ PARAGRAPH 4]. IN THOSE CIRCUMSTANCES, THOUGH THE SAID HIGH COURT DECISION DID NOT DEAL WITH THE CIRCULAR DATED 24-10-2005, BU T IT HAD DEALT WITH THE EARLIER CIRCULAR AND THE LIMITS OF T HAT CIRCULAR WERE APPLIED EVEN TO THE CASES WHICH WERE PRIOR TO THE OLD CIRCULAR. THEREFORE, THE RATIO OF THAT DECISION WAS APPLICABLE IN THE INSTANT CASE AS WELL. THE CBDT HAS TAKEN A POL ICY DECISION NOT TO FILE APPEALS IN SUCH TYPE OF CASES AND THE C IRCULAR IS BINDING ON THE REVENUE EVEN TO APPEALS FILED BEFORE 31-10-2005 AND THE DEPTT.. WOULD NOT BE JUSTIFIED IN PROCEEDIN G WITH THOSE APPEALS WITHIN THE MONETARY LIMIT OF TAX EFFECT PRE SCRIBED IN THE CIRCULAR DATED 24-10-2005 [PARAGRAPH 5]. THE CONTENTION OF THE REVENUE THAT THE CASE OF THE ASSESSEE WAS COVERED BY THE EXCEPTION 3 HAD ALSO NO FORCE INASMU CH AS THE SAID EXCEPTION PROVIDES THAT THE CBDT HAS ALSO DECI DED THAT IN CASES INVOLVING SUBSTANTIAL QUESTION OF LAW OF IMPO RTANCE AS WELL AS IN CASES WHERE THE SAME QUESTION OF LAW WIL L REPEATEDLY ARISE, EITHER IN THE CASE CONCERNED OR IN SIMILAR C ASES, SHOULD BE SEPARATELY CONSIDERED ON MERITS WITHOUT BEING HI NDERED BY THE MONETARY LIMITS [PARAGRAPH 6]. ITA NO.1640/AHD /2005 DCIT VS. VISAL ROADLINES HARIJ ASST.YEAR - 2001-02 - 5 - 4. IN THIS VIEW OF THE MATTER, RESPECTFULLY FOLLOWI NG VARIOUS ORDERS OF THIS TRIBUNAL ON THIS ISSUE INCLUDING THE DECISI ON CITED ABOVE, WE DISMISS THE APPEAL OF THE REVENUE IN LIMINE . 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 09/10 /2009. SD/- SD/- ( MAHAVIR SINGH ) ( D.C.AGRAWAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 09/ 10 /2009 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RES PONDENT-ASSESSEE. 3. THE CIT CONCERNED. 4. THE LD. CIT( APPEALS)-XXI,AHMEDABAD 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER, //TRUE COPY// E COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD