Asstt.Commissioner of Income-tax,(TDS) Circle-1, Nagpur V. M/s. Berlia Roadlines Private Limited, Nagpur

ITA 167/NAG/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9685 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 25-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; Tax effect

Judgement Text

ITA NO. 167/NAG/2010 BERLIA ROADLINES PRIVATE LTD., NAGPUR IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , NAGPUR BEFORE: SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI D.T. GARASIA , JUDICIAL MEMBER ITA NO. 167 / NAG /20 1 0 ASSESSMENT YEAR : 2005 - 06 ACIT(TDS), CIRCLE - 1 NAGPUR BERLIA R OADLINES PRIVATE LTD. NAGPUR (APPELLANT) (RESPONDENT) PAN NO. AABCB 3510E APPELLANT BY: SHRI K. JUBIN VIKRAM, JCIT DR. MILIND BHUSARI, CIT(DR) RESPONDENT BY: SHRI K.P. DEWANI, ADVOCATE DATE OF HEARING: 17.10.2012 DATE OF PRONOUNCEMENT: 18.10.2012 ORDER P ER BENCH: TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 17.8.2010 ON VARIOUS GROUNDS. 2 . AT THE OUTSET OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE RAISED A PRELIMINARY OBJECTION BY POINTING OUT INSTRUCTION NO . 3/2011 DATED 09.02.2011 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) FIXING THE MONETARY LIMITS FOR FILING OF DEPARTMENTAL APPEALS BEFORE THE TRIBUNAL. IN TERMS OF THE SAID INSTRUCTION, MONETARY LIMIT FOR FILING DEPARTMENTAL APPEAL TO THE TRIBUNAL HAS BEEN FIXED AT RS 3 LAKHS. IN OTHER WORDS, IN CASES WHERE THE TAX EFFECT OF THE ADDITIONS DELETED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) IS LESS THAN RS 3 LAKHS, NO APPEAL SHALL BE FILED BY THE DEPARTMENT IN SUCH CASES. ACCORDING TO THE LEARNED REP RESENTATIVE, THE TAX EFFECT WITH RESPECT TO THE RELIEF ALLOWED BY THE COMMISSIONER OF INCOME - TAX (A PPEALS) IN THE CAPTIONED APPEAL IS BELOW RS 3 LAKHS. SUCH FACTUAL MATRIX HAS NOT BEEN CONTESTED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, T HOUGH THE RELIEF ALLOWED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) IS SOUGHT TO BE ASSAILED ON MERITS . ITA NO.167/NAG/2010 BERLIA ROADLINES PRIVATE LTD., NAGPUR 3 . WE FIND THAT IN A RECENT DECISION, THE CO - ORDINATE BENCH OF ITAT MUMBAI, IN THE CASE OF ITO V SHRI ASHOK G. DHANDHARIAI, MUMBAI IN ITA NO2460/MUM/2 010 DATED 28.2.2011 HELD THAT THE REVISED INSTRUCTIONS DATED 9.2.2011 (SUPRA) ARE APPLICABLE TO THE PRESENT CASES ALSO, ALTHOUGH SUCH APPEALS HAVE BEEN FILED ON A PRIOR DATE. 4 . IN VIEW OF THE PRECEDENT BROUGHT OUT BY THE LEARNED REPRESENTATIVE FOR THE RES PONDENT, FA CTUALLY THE DEPARTMENTAL APPEAL IS LIABLE TO BE CONSIDERED TO HAVE BEEN FILED CONTRARY TO THE CBDT INSTRUCTIONS DATED 9.2.2011 (SUPRA). THE TRIBUNAL FOLLOWING THE JUDGMENT OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT V MADHUKAR K. INAMDAR (HUF) 318 ITR 149 AND CIT V PITHWA ENGINEERING WORKS 276 ITR 519 (BOM) FOUND IT APPROPRIATE TO DISMISS THE DEPARTMENTAL APPEAL ON THE GROUND THAT TAX EFFECT IS LESS THAN RS 3 LAKHS , EVEN IN A CASE WHERE THE DEPARTMENTAL APPEAL S WAS FILED PRIOR TO THE DATE OF THE CBDT INSTRUCTION DATED 9.2.2011 (SUPRA) . THE FOLLOWING DISCUSSION IN THE ORDER IS WORTHY OF NOTICE: 5. WE HEARD BOTH THE PARTIES. THE CASE OF CIT VS. CHHAJER PACKAGING & PLASTICS PVT. LTD. 300 ITR RELIED ON BY THE DR IS DISTINGUISHABLE FROM THE FA CTS OF THE PRESENT CASE. AT PARA 12 PAGE 184 OF THE DECISION IN THE CASE OF CHHAJER PACKAGING & PLASTICS PVT. LTD. IT HAS BEEN HELD AS FOLLOWS: OTHERWISE ALSO, PARAGRAPH OF THIS CIRCULAR ITSELF SAVES CERTAIN APPEALS FROM BEING OBSTRUCTED DUE TO FINANCIAL LIMITS. PARAGRAPH 3 READS: THE BOARD HAS ALSO DECIDED THAT IN CASES INVOLVING SUBSTANTIAL QUESTION OF LAW OF IMPORTANCE AS WELL AS IN CASES WHERE THE SAME QUESTION OF LAW WILL REPEATEDLY ARISE, EITHER IN THE CASE CONCERNED OR IN SIMILAR CASES, SHOULD BE S EPARATELY CONSIDERED ON THE MERITS WITHOUT BEING HINDERED BY THE MONETARY LIMITS. IT IS EVIDENT THAT, WHENEVER THERE IS A SUBSTANTIAL QUESTION OF LAW, OR QUESTION OF LAW WHICH IS LIKELY TO RECUR IN FUTURE, THE DEPARTMENT IS NOT PROHIBITED FROM FILING AND PURSUING APPEALS. WE BELIEVE THAT THE SAVING CLAUSE SAVES THE PRESENT APPEAL SINCE IT INVOLVES A QUESTION OF LAW REGARDING INTERPRETATION OF SECTION 275(1) (C) OF THE ACT, AND MORE PARTICULARLY TH E ASPECT OF MANNER IN WHICH THE LIMITATION SHOULD BE COMPUTED IN THE LIGHT OF THE SAID PROVISIONS. WE HAVE, THEREFORE, PROCEEDED TO HEAR THE ADVOCATES ON THE MERITS. IN OUR OPINION, THE CASE OF CIT V CHHAJER WAS WITH RESPECT OF INTERPRETATION OF 275(1) (C) OF THE ACT AND HENCE CAME UNDER THE EXCEPTION CLAUSE UNDER TH E CBDT CIRCULAR AND WAS NOT OBSTRUCTED BY ITA NO.167/NAG/2010 BERLIA ROADLINES PRIVATE LTD., NAGPUR THE MONETARY LIMIT OF RS 3 LAKHS PRESCRIBED BY THE CIRCULAR. THEREFORE THE CASE OF 300 ITR 180 IS INAPPLICABLE TO THE FACTS OF OUR CASE. FURTHER INSTRUCTION NO. 5 DT. 15.5.2008 FIXING THE MONETARY LIMIT AT RS 2 LAK HS IS SIMILAR TO THAT OF INSTRUCTION NO. 3 DATED 9.2.2011 WHICH THE ASSESSEE HAS BROUGHT TO OUR NOTICE IN SUPPORT OF HIS CONTENTION. SINCE BOTH THE INSTRUCTION NOS. 5 & 3 ARE IDENTICAL, THE RATIO OF THE DECISION IN THE CASE OF CIT V PITHWA ENGG. WORK WHICH DEALS WITH INSTRUCTION NO. 5 DT. 15.5.2008 SHALL EQUALLY APPLY TO THE PRESENT CASE WHICH FALLS UNDER INSTRUCTION NO. 3 DATED 9.2.2011. FOLLOWING THE RATIO OF THE DECISION IN THE CASE OF CIT V PITHWA ENGG. WORK WHEREIN IT HAS BEEN HELD THAT IN OUR VIEW, THE BOARD S CIRCULAR DT. 27 TH MARCH, 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED , WE DISMISS THE DEPARTMENTAL APPEAL ON THE GROUND THAT THE TAX EFFECT IS LESS THAN 3 LAKHS. 5. FOLLOWING THE AFORESAID PRECEDENT, THE C APTIONED APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED I N VIEW OF CBDT INSTRUCTION NO. 3 DATED 9.2.2011 (SUPRA) AS THE TAX EFFECT WITH RESPECT TO THE QUANTUM OF RELIEF ALLOWED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) IS BELOW RS 3 LAKHS AND IT H AS NOT BEEN SHOWN THAT THE APPEAL FALL S UNDER ANY OF THE EXCEPTIONS PROVIDED IN PARA 8 OF THE CBDT INSTRUCTION (SUPRA). WE ORDER ACCORDINGLY. PRONOUNCED IN THE OPEN COURT ON 18.10 .201 2 SD/ - SD/ - ( D.T. GARASIA ) ( P.K. BANSAL ) JUDICIAL MEMBER ACCO UNTANT MEMBER VG/SPS NAGPUR DATED 18 TH OCTOBER , 20 1 2 COPY TO 1 THE ACIT (TDS), CIRCLE - 1, NAGPUR 2 BERLIA ROADLINES PRIVATE LIMITED, 91, CHHAPRU NAGAR, NAGPUR 3 THE CIT (TDS), NAGPUR 4 THE CIT(A), NAGPUR 5 THE DR, ITAT, NAGPUR 6 GUARD FILE. BY ORDER S R. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL NAGPUR