The ACIT, Circle-9, Surat V. M/s. Gemstone Exports, Surat

ITA 1790/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9220 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 28-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISRA
• Keywords: Question of law; Tax effect; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 27/08/09 DRAFTED ON: 02/09/09 ITA NO.1790/AHD/2009 ASSESSMENT YEAR : 2001-02 THE ASST.CIT CIRCLE-9 SURAT VS. M/S.GEMSTONE EXPORTS 313, SAHYOG CHAMBERS GITANJALI CINEMA VARACHHA ROAD, SURAT PAN/GIR NO. : AACFG 5854 G (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI C.K. MISRA, D.R. RESPONDENT BY: -NONE- O R D E R PER D.C.AGRAWAL , ACCOUNTANT MEMBER :- THIS IS REVENUES APPEAL AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-V, SURAT DATED 26-03-2009 PASSED FOR ASSESSMENT YEAR 2001-02, BY RAISING FOLLOWING GROUND(S): 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD.CIT(A) IS RIGHT IN LAW ALLOWING THE CL AIM OF THE ASSESSEE U/S.80HHC OF THE ACT AT RS.4,46,702 /- THOUGH THE SALE OF LICENCE PREMIUM IS NOT EXPORT INCENTIVE. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A)BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE REST ORED. ITA NO.1790/AHD /2009 ACIT VS. M/S.GEMSTONE EXPORTS. ASST.YEAR - 2001-02 - 2 - 2. AT THE OUT SET, A QUERY WAS RAISED BY THE BENCH AS 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. LEARNE D 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 . 3. NONE APPEARED ON BEHALF OF RESPONDENT-ASSESSEE N OR ANY APPLICATION HAS BEEN FILED SEEKING FOR ADJOURNMENT . AFTER HAVING HEARD THE LD.DR, CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE CBDT CIRCULARS ON THIS ISSUE, WE FIND THAT ITAT IS TAKING CONSISTENT VIEW IN NUMBER OF CASES ABOUT ADMISSIBILITY OF APPE AL FILED BY THE REVENUE IN VIEW OF VARIOUS INSTRUCTIONS ISSUED BY C BDT FROM TIME TO TIME, VIZ. INSTRUCTION NO.1979 DATED 27-3-2000, NO.1985 DATED 29- 6-2000, NO.6 OF 2003 DATED 17-07-2003, NO.19 OF 200 3 DATED 23-12- 2003, NO.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.142/2007-IT DATED 15-5-2008, WHERE IN MONETARY LIMITS FOR FILING DEPARTMENTAL APPEALS (INCOME-TAX MATTERS) AND OTHER CONDITIONS WERE SPECIFIED, FOR FILING APPEALS BEFOR E APPELLATE TRIBUNALS, HIGH COURTS AND SUPREME COURT. DECISION OF COORDINATING BENCH OF ITAT, RAJKOT IN THE CASE OF ACIT VS. RAJOO ITA NO.1790/AHD /2009 ACIT VS. M/S.GEMSTONE EXPORTS. ASST.YEAR - 2001-02 - 3 - ENGINEERS LTD.[2006] 100 ITD 555, WHEREIN THE HON'B LE 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 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]. ITA NO.1790/AHD /2009 ACIT VS. M/S.GEMSTONE EXPORTS. ASST.YEAR - 2001-02 - 4 - 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]. 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 04/09/2009. SD/- SD/- ( MAHAVIR SINGH ) ( D.C.AGRAWAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 04/ 09 /2009 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. T HE RESPONDENT-ASSESSEE. 3. THE CIT CONCERNED. 4. THE LD . CIT(APPEALS)-V, SURAT 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD