ACIT, Salem V. M/s. Sree Venkatachalapathy Corporatiion, Salem

ITA 1647/CHNY/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5203 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 20-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P B SEKARAN
• Assessee Lawyers: G BASKAR
• Keywords: Tax effect

Judgement Text

IN THE INCOME - TAX APPELLATE TRIBUNAL CHENNAI B BENCH, CHENNAI. BEFORE SHRI.U.B.S. BEDI , J.M. & SHRI. N.S. SAINI, A.M. I.T.A. NO S . 1 646 AND 1647/MDS/2009 ASSESSMENT YEAR S : 200 3 - 0 4 AND 04 - 05 THE ASSISTANT COMMISSIONER OF INCOME T AX, CENTRAL CIRCLE, NO.3 , GANDHI ROAD, SALEM 7. VS. M/S. SREE VENKATACHALAPATHY CORPORATION, 4/130, G.T. GARDEN, KALIAMMAN KOIL THOTTAM, GUDALUR, MAGUDANCHAVADI, SALEM 637 103. [PAN: A AVFS0057Q ] (APPELLANT) (RESPONDENT) REVENUE BY : SHRI P.B. SEKARAN ASSESSEE BY : SHRI G. BASKAR ORDER PER U.B.S. BEDI, J.M . TH E S E TWO APPEAL S OF THE DEPARTMENT EMANATE FROM COMBINED ORDER PASSED BY THE LD. CIT(A) , SALEM DATED 30 .0 4 .200 9 FOR VARIOUS ASSESSMENT YEARS, WHEREAS THESE APPEALS RELATE TO THE ASSESSMENT YEAR S 200 3 - 0 4 AND 04 - 05 . 2. THESE APPEALS WERE FOUND TO HAVE BEEN FILED LATE BY 88 DAYS AND THE ACIT CONCERNED HAS FILED CONDONATION PETITION S, SUPPORTED BY AFFIDAVIT S , STAT ING THEREIN THAT THERE HAS BEEN CHANGE IN THE INCUMBENT DURING THE PROCESSING OF APPEAL PAPERS AND AFTER P ROCESSING APPEAL PAPERS STATED TO BE CHANNELIZED THROUGH ADDL. CIT, COIMBATORE AND THEN CIT CENTRAL III, CHENNAI FOR APPROVAL AND THE ABOVE OFFICES ARE LOCATED AT COIMBATORE AND CHENNAI RESPECTIVELY. SO, THE DELAY IN FILING THE APPEAL HAS OCCURRED ON CHANG E IN INCUMBENCY AND TIME I.T.A. NO S . 1646 & 1647/MDS/09 2 TAKEN IN TRANSIT OF RECORDS, WHICH IS NEITHER INTENTIONAL NOR DELIBERATE, IT WAS PLEADED FOR CONDONATION OF DELAY. 2.1 THE LD. COUNSEL FOR THE ASSESSEE HAS BEEN HEARD ON THE POINT OF CONDONATION OF DELAY. 2.2 AFTER HEARING BOTH T HE SIDES AND CONSIDERING THE MATERIAL ON RECORD AS WELL AS REASONS GIVEN FOR FILING THE APPEALS LATE, WE ARE CONVINCED THAT THERE WAS BONAFIDE REASONS WITH THE ACIT CONCERNED TO FILE THE APPEALS LATE. THEREFORE, WHILE ACCEPTING SUCH PETITIONS OF THE DEPART MENT, WE CONDONE THE DELAY AND ADMIT BOTH THE APPEALS OF THE DEPARTMENT FOR HEARING. 2 . THE LD. COUNSEL FOR THE ASSESSEE, AT THE VERY OUTSET SUBMITTED THAT THE CBDT HAS ENHANCED THE FINANCIAL LIMIT FOR FILING OF APPEAL BEFORE THE TRIBUNAL TO ` .3.00 LAKHS OF TAX EFFECT AGAINST THE EARLIER LIMIT OF ` .2.00 LAKHS AS PER CBDT INSTRUCTION NO.3 OF 2011 DATED 09.02.2011 AND , IT WAS PLEADED FOR DISMISSING BOTH THE APPEAL S OF THE DEPARTMENT DUE TO LESS TAX EFFECT AND THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT IN THIS FRESH CIRCULAR DATED 09.02.2011, THERE IS SPECIFIC STIPULATION [AS PER PARA 11 OF THE INSTRUCTION] THAT THIS INSTRUCTION SHALL APPLY TO APPEALS FILED ON OR AFTER 09.02.2011 AND EARLIER FILED APPEALS WILL BE GOVERNED BY EARLIER INSTRUCTIONS ON THIS SU BJECT, OPERATIVE WHEN SUCH APPEAL WAS FILED AND THE LD. DR HAS PLEADED FOR DISMISSAL OF THE PLEA OF THE ASSESSEE S COUNSEL AND TO DECIDE THE APPEAL ON MERITS. 3. THE LD. COUNSEL FOR THE ASSESSEE , IN ORDER TO COUNTER THE SUBMISSIONS OF THE LD. DR, HAS SUB MITTED THAT OPERATION OF EARLIER INSTRUCTION , WHICH IS SIMILARLY WORDED , IN THIS REGARD , HAS BEEN HELD TO BE RETROSPECTIVE LY EFFECT IVE IN VIEW OF I.T.A. NO S . 1646 & 1647/MDS/09 3 THE DECISION S OF HON BLE BOMBAY AND PU N JAB & HARYANA HIGH COURT S . SO APPLYING THE SAME RATIO, VARIOUS BENCHES OF ITAT CHENNAI HAVE ALREADY TAKEN THE VIEW THAT THE MONETARY LIMIT PRESCRIBED ON LESS TAX EFFECT IN THE EXISTING/LATEST CIRCULAR WOULD APPLY TO THE APPEALS FILED BEFORE THE ISSUE OF THE CIRCULAR AND USEFUL REFERENCE CAN BE ALSO MADE TO THE APPEAL IN ITA N O. 1966/MDS/2010 DATED 12.04.2011 IN THE CASE OF ACIT V. SHRI N. RATHNA KUMAR FOR THE ASSESSMENT YEAR 2007 - 08 AND THE LD. DR COULD NO CONTROVERT THIS PLEA AND THUS , IT WAS PLEADED THAT THE PLEA OF THE DEPARTMENT IN THIS REGARD SHOULD NOT BE ENTERTAINED AND BOTH THE APPEAL S OF THE DEPARTMENT MAY BE DISMISSED AS NOT MAINTAINABLE. 4 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND MATERIAL ON RECORD. SO FAR AS THE OBJECTION OF THE LD. DR ABOUT RETROSPECTIVITY OF REVISED LIMIT OF TAX EFFECT IS CONCERNED , WE FIND TH AT NO DOUBT IN THE CBDT INSTRUCTION NO.3/2011 DATED 09.02.2011 , THERE IS CLEAR STIPULATION AS PER PARA 11 OF THE SAID INSTRUCTION THAT THESE INSTRUCTIONS WILL BE APPLICABLE TO THE APPEALS FILED ON OR AFTER 09.02.2011 . BUT SIMILAR TYPE OF STIPULATION WAS TH ERE IN INSTRUCTION NO.3 OF 2008 DATED 15.05.2008 IN CLAUSE 11 OF SAID INSTRUCTION AND MORE THAN ONE HIGH COURTS ARE FOUND TO HAVE HELD THAT REVISED MONETARY LIMIT WOULD APPLY TO ALL PENDING APPEALS AND SUCH ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE HAS NOT BEEN REFUTED BY THE LD. DR AND OTHERWISE, THE DEPARTMENT HAS NOT MADE OUT A CASE TO ESTABLISH THAT THE ISSUE FALLS WITHIN THE EXCEPTIONS PROVIDED IN THE SAID CIRCULAR / INSTRUCTION. I.T.A. NO S . 1646 & 1647/MDS/09 4 4 .1 FURTHER IN THE CASE OF CIT V. ASSOCIATED AGENCIES, CHENNAI - 600 0 34 REPORTED IN 295 ITR 496, THE HON BLE MADRAS HIGH COURT HAS HELD THAT APPEALS CANNOT BE FILED IN VIOLATION OF THE SAID CIRCULAR. THE HON BLE MADRAS HIGH COURT HAD ALSO REFERRED TO THE JUDGMENT OF HON BLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. D IGVIJAY SINGH REPORTED IN (2007) 292 ITR 314, THE JUDGMENT OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ZOEB Y. TOPIWALS (2006) 284 ITR 379 AND ALSO ANOTHER JUDGMENT OF HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. CAMCO COLOUR CO., (2002) 254 IT R 565 FOR THE PROPOSITION THAT DIRECTIONS ISSUED BY THE BOARD ARE BINDING ON THE DEPARTMENT AND APPEAL FILED WHERE THE TAX EFFECT IS LESS THAN THAT PROVIDED IN THE SAID INSTRUCTION IS NOT MAINTAINABLE. 4 .2 HENCE, IN VIEW OF THE SAID CIRCULAR AND RESPECTFU LLY FOLLOWING THE PRECEDENTS FROM HO N BLE JURISDICTIONAL HIGH COURT AS NOTED ABOVE, THE APPEAL S ARE DISMISSED IN LIMINE. 5 IN THE RESULT, BOTH THE APPEAL S OF THE REVENUE ARE DISMISSED . ORDER PRONOUNCED SOON AFTER THE CONCLUSION O F HEARING ON 10 . 0 5 .2011. SD/ - SD/ - ( N.S. SAINI ) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER CHENNAI, DATED, THE. 10 . 0 5 .2011 VM/ - TO:THE ASSESSEE//A.O./CIT(A)/CIT/D.R .