DCIT, Circle - 1, Midnapore, Paschim Medinipur V. M/s. Gouri Medical & Veterinary Stores Pvt. Ltd., Paschim Medinipur

ITA 1738/KOL/2010

• Counselvise Citation: 173823514 RSA 2010
• Duration Of Justice: 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2011
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 06-09-2010
• Court: TRIBUNAL
• Department Lawyers: B R PURKAYASTHA
• Keywords: Peak credit; Tax effect

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND ! ! ! ! , '# SHRI AKBER BASHA, ACCOUNTANT MEMBER $ $ $ $ / ITA NO . 1738/KOL/2010 %& '(/ ASSESSMENT YEAR : 2005-06 (*+ / APPELLANT ) D.C.I.T., CIRCLE-1, MIDNAPORE - % - - VERSUS - . (-.*+/ RESPONDENT ) M/S.GOURI MEDICAL & VETERINARY STORES PVT,. LTD., MEDINIPUR (PAN: AABCG 0255 H) *+ / 0 '/ FOR THE APPELLANT: SHRI B.R.PURKAYASTHA, SR.DR -.*+ / 0 '/ FOR THE RESPONDENT: NONE '! / ORDER ( (( ( ! ! ! !) )) ), , , , '# PER SHRI AKBER BASHA, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 18.05.2010 OF THE CIT(A)-XXXVI, KOLKATA PERTAINING TO A.YR. 2005-06. 2. NO ONE APPEARED ON BEHALF OF THE ASSESSEE . ON HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON PERUSAL OF MATER IALS AVAILABLE ON RECORD THE APPEAL FILED BY THE REVENUE IS DISPOSED OFF. 2 3. IN THIS APPEAL THE REVENUE HAS TAKEN THE FO LLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT(A) HAS ERRED IN DELETING THE ESTIMA TION MADE BY THE AO ON A/C. OF CASH IN HAND ON THE BASIS OF PEAK CREDIT, WHICH IS CALCULATED AT 10% OF THE CONCEALED STOCK AT RS.6,95,858/- AND BY GIVING DIRE CTIONS TO THE AO TO RESTRICT THE ADDITION TO RS.2 LAKHS IN PLACE OF RS.6,95,858/ -. 2. IN THE LIGHT OF BOARDS INSTRUCTIONS NO.5/2008, DATED 15.05.2008, THE MONETARY LIMIT FOR FILING APPEAL BEFORE THE APPELLA TE TRIBUNAL IS RS.2 LAKH, CONSIDERING THE AFORESAID FACTS A 2 ND APPEAL IS STRONGLY SUGGESTED IN THIS CASE.. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER/OR AMEND ANY OF THE GROUNDS OF APPEAL BEFORE DURING THE COURSE OF HEARING. 4. AT THE TIME OF HEARING WE FIND THAT IN THIS C ASE THE TAX EFFECT IS BELOW RS. 2 LAKHS. THEREFORE, AS PER THE INSTRUCTION OF C BDT CIRCULAR THE REVENUE IS BARRED FROM FILING OF THE APPEAL BEFORE THIS TRIBUNAL. 5.1. ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROU NDS OF APPEAL RAISED BY THE DEPARTMENT IS LESS THAN RS.2 LAKHS. THE REVISED INS TRUCTION OF THE CBDT NO. 5/2008 DATED 15.05.2008 IS WELL APPLICABLE IN THE PRESENT CASE AND THEREFORE, IN OUR CONSIDERED OPINION, THE REVENUE SHOULD HAVE REFRAIN ED FROM FILING SECOND APPEAL BEFORE THE TRIBUNAL. IT WOULD BE APT TO QUOTE THE O BSERVATION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS.- ITAT 232 ITR 207 AT PAGE 2 16 AS BELOW :- THE CENTRAL BOARD OF DIRECT TAXES INSTRUCTIONS ARE BINDING ON THE DEPARTMENT. IF THE CASE AT HAND IS C OVERED BY A POLICY LAID DOWN BY THE CENTRAL BOARD OF DIREC T TAXES IN THAT CASE NO FAULT CAN BE FOUND WITH THE ORDER O F THE TRIBUNAL REFUSING TO STATE THE CASE AND THERE IS NO REASON WHY THE HIGH COURT SHOULD INTERFERE WITH SUCH DISCR ETION OF THE TRIBUNAL AS HAS BEEN EXERCISED CONSISTENTLY WIT H THE UNIFORM POLICY LAID DOWN BY THE CENTRAL BOARD OF DI RECT TAXES WHICH BINDS ALL THE SUBORDINATE AUTHORITIES O F THE INCOME TAX DEPARTMENT. THE HIGH COURT WOULD NOT ORDINARILY ENCOURAGE BREACH OF POLICY DECISIONS AND THE DEPARTMENTAL INSTRUCTIONS WHICH HAVE A PUBLIC PURPO SE BEHIND THEM. VALUABLE TIME OF HIGH COURTS AND HIGHL Y PLACED TRIBUNALS IS NOT TO BE WASTED ON PETTY MATTE RS. 5.2. WE FURTHER FIND THAT IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFI RMED BY THE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPO RATION LTD. REPORTED IN 267 ITR 3 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DE CISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID D OWN THAT WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRAR Y TO THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRA RY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.5 OF 2008 DATED 15.5.2008. 5.3. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL FILED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CO NTRARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE . 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.05.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER ! ! ! !, ,, , '# '# '# '# , AKBER BASHA, ACCOUNTANT MEMBER. ( (( (1# 1# 1# 1#) )) ) DATE: 04.05.2011. '! / -2 3'2'4- COPY OF THE ORDER FORWARDED TO: 1. M/S. GOURI MEDICAL & VETERINARY STORES PVT. LTD., A LIGANJ, PO-MIDNAPORE, DIST-PASCHIM, MEDINIPUR. 2 THE DCIT, CIRCLE-1, MIDNAPORE 3. THE CIT, 4. THE CIT(A)-XXXVI, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .2 -/ TRUE COPY, '!%:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.) 4