ACIT, Circle - 37, Kolkata, Kolkata V. M/s. Dey Book Concern, Kolkata

ITA 1645/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48119 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2011
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 09-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 19-08-2010
• Court: TRIBUNAL
• Department Lawyers: P C NAYAK
• Assessee Lawyers: S K TULSIYAN
• Keywords: Tax effect
• Section: 260A

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , , , , SMT.DIVA SINGH, JUDICIAL MEMBER. /AND ! ! ! ! !' !' !' !' , #$ SHRI AKBER BASHA, ACCOUNTANT MEMBER % % % % / ITA NO . 1645/KOL/2010 &' ()/ ASSESSMENT YEAR : 2006-07 (+, / APPELLANT ) A.C.I.T., CIRCLE-37, KOLKATA - & - - VERSUS - . (./+,/ RESPONDENT ) M/S. DEY BOOK CONCERN, KOLKATA (PAN: AAEFD 2942 C) +, 0 1 #/ FOR THE APPELLANT: SHRI P.C.NAYAK ./+, 0 1 #/ FOR THE RESPONDENT: SHRI S.K.TULSIYAN #' / ORDER ( (( ( ) )) ), ,, , PER SMT.DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A)-XXIV, KOLKATA DATED 25.05.2010 PERTAINING TO A.YR.2006-07 . 2. IN THIS APPEAL THE REVENUE HAS TAKEN THE FOLL OWING GROUNDS OF APPEAL :- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS IN FACT IN DELETING THE PENALTY LEVIED U/S 271(1)(C) OF RS.2,77,160/- WITHO UT APPRECIATING THE FACT THAT RECTIFICATION IS NOT ALLOWABLE UNDER THE PROVISION OF SEC.148 OF THE IT ACT. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, M ODIFY, INCLUDE OR DELETE THE OTHER GROUNDS OF APPEAL. 3. AT THE TIME OF HEARING THE LD. COUNSEL APPEARIN G ON BEHALF OF THE ASSESSEE SUBMITTED THAT IN THIS CASE THE TAX EFFECT INVOLVED IS RS.2,77,160/- AND SINCE THE TAX IS LESS THAN RS. 3 LAKHS AS PER CBDT INSTRUCTION NO.3/ 2011(F.NO.279/MISE/142/2007- 2 ITJ) DATED 9.2.2011 WHEREIN IT HAS BEEN ENHANCED TH E LIMITS FOR FILING OF APPEALS BEFORE THE TRIBUNAL TO RS.3 LAKHS THE ASSESSEES AP PEAL IS LIABLE TO BE DISMISSED IN LIMINE. IN VIEW OF THE LATEST ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DELHI RACE CLUB IN ITA NO.128/2008 WHEREIN THE H ONBLE HIGH COURT OPINED THAT THAT THE CIRCULAR WOULD ALSO APPLY TO THE PENDING C ASES. THE COPY OF THE HONBLE DELHI HIGH COURT IS PLACED ON RECORD. THE LD. COUNSEL ALS O REFERRED TO THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS ASHOK KUMA R MANIBHAI PATEL & CO. (2009) 317 ITR 386 (MP). 5. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF THE REVENUE STATED THAT THE APPEAL HAS BEEN FILED ON 19.8.2010 PRIOR TO THE INSTRUCTION RELIED UPON BY THE LD. AR. RELYING ON PARA 11 OF THE SAID CIRCULAR IT WAS STATED THAT THE SAME WOULD APPLY TO THE APPEALS FILED AFTER THE SAID CIRCULAR AS SUCH T HE APPEAL HAS TO BE DECIDED ON MERIT. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIAL ON RECORD AND THE POSITION OF LAW WHICH WAS NOT CONTROVERTED BY THE LD. DR WE ARE OF THE VIEW THAT THE DEPARTMENTAL APPEAL HAS TO BE DISMISSED. A PERUSAL OF THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DELH I RACE CLUB IN ITA NO.128/2008 DATED 03.03.2011 WOULD SHOW THAT IT HAS BEEN HELD : THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S.4,65,860/-. AS PER RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS, ARE NOT BE ENTERTAINED. THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TA X-III V. M/S. P.S.JAIN AND CO. BEING NO.179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 6.1. IN THE FACTS O THE PRESENT CASE ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROUNDS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS.3 LAKHS AND AS PER REVISED INSTRUCTION OF THE CBDT NO. 3 DATED 9.2.2011 WHEREIN THE CBDT HAS REVISED THE FILING LIMITS FILED BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT A S UNDER :- BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS. 3 L AKHS, APPEALS U/S 260A OF THE IT ACT BEFORE THE HONBLE HIGH COURT : RS.10 LAKHS AND BEFORE THE HONBLE SUPREME COURT : RS.25 LAKHS 3 SINCE IN THE PRESENT CASE THE ABOVE REVISED INSTRUC TION IS FULLY APPLICABLE IN VIEW OF THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT (SUPR A) HENCE IN OUR OPINION THE REVENUES APPEAL IS NOT MAINTAINABLE IN VIEW OF THE SAID CIRCULAR OF THE CBDT. 6.2. WE FURTHER FIND THAT 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 CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATIO N LTD. 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. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRA RY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9.2.2011. 6.3. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL FILED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CONTRARY T O THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE . 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 09.05.2011 SD/- SD/- ! !' ! !' ! !' ! !', ,, , #$ #$ #$ #$ AKBER BASHA, ACCOUNTANT MEMBER , , , , DIVA SINGH, JUDICIAL MEMBER. ( (( (2$ 2$ 2$ 2$) )) ) DATE: 09.05.2011 R.G.(.P.S.) 4 #' 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. M/S. DEY BOOK CONCERN, 15, SHYAMA CHARAN DEY STREET , KOLKATA-700073. 2 THE A.C.I.T., CIRCLE-37, KOLKATA 3. THE CIT, 4. THE CIT(A)-XXIV, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA /3 ./ TRUE COPY, #'&;/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES