ITO, Ward - 39(1), Kolkata, Kolkata V. Smt. Anupama Tantia, Kolkata

ITA 1889/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54575 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 08-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S DUTTA
• Assessee Lawyers: AVIJIT DEY
• Keywords: Audit objection; Tax effect
• Section: 260A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND . . , !' ) [BEFORE SRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM] # # # # / I.T.A NO.1889/KOL/2010 $% &' $% &' $% &' $% &'/ // / ASSESSMENT YEAR: 2003-04 INCOME-TAX OFFICER, WD-39(1), KOLKATA. VS. SM. AN UPAMA TANTIA (PAN-ABNPT 3230 B) ()* /APPELLANT ) (+,)*/ RESPONDENT ) FOR THE APPELLANT: SHRI P. S. DUTTA FOR THE RESPONDENT: SHRI AVIJIT DEY DATE OF HEARING: 12.10.2011 DATE OF PRONOUNCEMENT: 12.10.2011 !- / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-IV, KOLKATA IN APPEAL NO.45/CIT(A)-IV/08-09 DATED 24.12.2009. ASSESSMENT WAS FRAMED BY ACIT, CENTRAL-1, KOLKATA U/S.143(3) OF THE INCOME TAX ACT, 1961 (HER EINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2003-04 VIDE HIS ORDER DATED 13.06. 2005. 2. AT THE OUTSET, IT WAS INFORMED BY LD. COUNSEL F OR THE ASSESSEE THAT TAX EFFECT IN THIS APPEAL IS BELOW THE PRESCRIBED MONETARY LIMITS FOR FILING OF APPEALS BEFORE ITAT AND OTHER SUPERIOR COURTS BY CBDT. IT SEEMS THAT IN THIS APPE AL OF REVENUE, THE QUANTUM INVOLVED IS RS.5,61,660/- ON WHICH TAX EFFECT WILL BE RS.56,166 /- BEING DIFFERENTIAL AMOUNT OF TAX ON LONG TERM CAPITAL GAINS @ 10%. THE ONLY ISSUE NOW REMAIN S BEFORE US IS THAT THE APPEAL OF THE REVENUE IS BELOW THE PRESCRIBED LIMIT OF TAX EFFECT IN VIEW OF THE BOARDS INSTRUCTION ISSUED FROM TIME TO TIME REVISING THE MONETARY LIMITS FOR FILIN G OF APPEALS BY THE DEPARTMENT BEFORE ITAT AND OTHER SUPERIOR COURTS. THE APPEAL RELATES TO A SSESSMENT YEAR 2003-04 AND FILED BEFORE THE TRIBUNAL ON 08.10.2010. SINCE THIS APPEAL FILED ON 08.10.2010, THE SAME WILL BE COVERED BY INSTRUCTION NO. 5 OF 2008 ISSUED ON 15.5.2008 I.E. THE REVISED MONETARY LIMIT FOR FILING OF APPEAL BEFORE ITAT, WHEREBY THE CBDT HAS FIXED THE LIMIT O F RS. 2 LACS. THE RELEVANT CIRCULAR ISSUED BY CBDT READS AS UNDER: INSTRUCTION NO.5/2008, DATED 15-5-2008 2 ITA 1889/K/2010 SM. ANUPAMA TANTIA. A.Y.03-04 REFERENCE IS INVITED TO BOARDS INSTRUCTIONS NO.197 9 DATED 27.3.2000, NO.1985 DATED 29.6.2000, NO.6 OF 2003 DATED 17.7.2003, NO.19 OF 2 003 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, WHEREIN MONETARY LIMITS FOR FILING DEPARTMENTAL APPEALS (IN INCOME TAX MATTERS) AND OTHER CONDITIONS WERE SPECIFIED, FOR FILING APPEALS BEFOR E APPELLATE TRIBUNALS, HIGH COURTS AND SUPREME COURT. 2. IN SUPERSESSION OF THE ABOVE INSTRUCTIONS, IT HA S BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS WILL BE FILED BEFORE APPELLATE TRIBUNALS, HIGH COURTS AND SUPREME COURT AS PER MONETARY LIMITS AND CONDITIONS SPECIFI ED BELOW. 3. APPEALS WILL HENCEFORTH BE FILED ONLY IN CASES WHERE THE TAX EFFECT EXCEEDS MONETARY LIMITS GIVEN HEREUNDER:- SR.NO. APPEALS IN INCOME TAX MATTERS MONETARY LIMIT IN RS. 1. APPEAL BEFORE APPELLATE TRIBUNAL 2,00,000/- 2. APPEAL UNDER SECTION 260A BEFORE HIGH COURT 4,00,000/- 3. APPEAL BEFORE SUPREME COURT 10,00,000/- 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSEE AND THE TAX THAT WOULD HAVE BEEN CH ARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE I SSUE AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREAFTER REFERRED TO AS DISPUTED ISS UES). HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THEREON. SIMILARLY, IN LOSS CASES NOTI ONAL TAX EFFECT SHOULD BE TAKEN INTO ACCOUNT. IN THE CASES OF PENALTY ORDERS, THE TAX EF FECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAI NST. 5. THE ASSESSING OFFICER SHALL CALCULATE TH E TAX SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EV ERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ON E ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS I N WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPECIFIE D IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN OTHER WORDS HENCEFORT H, APPEALS WILL BE FILED ONLY WITH REFERENCE TO THE TAX EFFECT IN THE RELEVANT ASSESSM ENT YEAR. HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTH ORITY, WHICH INVOLVES MORE THAN ONE YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL ASSES SMENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S), IF IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH THE TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED. 6. IN A CASE WHERE APPEAL BEFORE A TRIBUNAL OR A COURT IS NOT FILED ONLY ON ACCOUNT OF THE TAX EFFECT BEING LESS THAN THE MONETARY LIMI T SPECIFIED ABOVE, THE COMMISSIONER OF INCOME-TAX SHALL SPECIFICALLY RECORD THAT EVEN THO UGH THE DECISION IS NOT ACCEPTABLE, APPEAL IS NOT BEING FILED ONLY ON THE CONSIDERATION THAT THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN THIS INSTRUCTION. FURT HER, IN SUCH CASES, THERE WILL BE NO PRESUMPTION THAT THE INCOME-TAX DEPARTMENT HAS ACQU IESCED IN THE DECISION ON THE DISPUTED ISSUES IN THE CASE OF THE SAME ASSESSEE F OR ANY OTHER ASSESSMENT YEAR, OR IN THE CASE OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHE R ASSESSMENT YEAR, IF THE TAX EFFECT EXCEEDS THE SPECIFIED MONETARY LIMITS. 7. IN THE PAST, A NUMBER OF INSTANCES HAVE COME TO THE NOTICE OF THE BOARD, WHEREBY AN ASSESSEE HAS CLAIMED RELIEF FROM THE TRIBUNAL OR THE COURT ONLY ON THE GROUND THAT THE DEPARTMENT HAS IMPLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN THE CASE OF THE ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR IN TH E CASE OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR, BY NOT FILING AN APPEAL ON THE SAME DISPUTED ISSUES. 3 ITA 1889/K/2010 SM. ANUPAMA TANTIA. A.Y.03-04 THE DEPARTMENTAL REPRESENTATIVES/ COUNSEL MUST MAKE EVERY EFFORT TO BRING TO THE NOTICE OF THE TRIBUNAL OR THE COURT THAT THE APPEAL IN SUC H CASES WAS NOT FILED OR NOT ADMITTED ONLY BY REASON OF THE TAX EFFECT BEING LESS THAN TH E SPECIFIED MONETARY LIMIT AND THEREFORE, NO INFERENCE SHOULD BE DRAWN THAT THE DECISIONS REN DERED THEREIN WERE ACCEPTABLE TO THE DEPARTMENT. ACCORDINGLY, THEY SHOULD IMPRESS UPON T HE TRIBUNAL OR THE COURT THAT SUCH CASES DO NOT HAVE ANY PRECEDENT VALUE. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING SHOU LD BE CONTESTED IRRESPECTIVE OF THE TAX EFFECT. A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE. B) WHERE BOARDS ORDER, NOTIFICATION, INSTR UCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRAVIRES. C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. 9. THE PROPOSAL FOR FILING SPECIAL LEAVE UNDER ART ICLE 136 OF THE CONSTITUTION BEFORE THE SUPREME COURT SHOULD, IN ALL CASES, BE SENT TO THE DIRECTORATE OF INCOME TAX (LEGAL AND RESEARCH) NEW DELHI AND THE DECISION TO FILE SP ECIAL LEAVE PETITION SHALL BE IN CONSULTATION WITH THE MINISTRY OF LAW AND JUSTICE. 10. THE MONETARY LIMITS SPECIFIED IN PARA 3 A BOVE WILL NOT APPLY TO WRIT MATTERS. 11. THIS INSTRUCTION WILL APPLY TO APPEALS FI LED ON OR AFTER 15TH OF MAY 2008. HOWEVER, THE CASES WHERE APPEALS HAVE BEEN FILED BE FORE 1 5TH OF MAY 2008 WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERA TIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 12. THIS ISSUES UNDER SECTION 268(1) OF THE INCOME TAX ACT, 1961. ON QUERY FROM THE BENCH, THE LD. DR COULD NOT POINT OUT ANY OF THE EXCEPTIONS AS PROVIDED IN THE CIRCULAR AS UNDER: (A) THAT THIS IS A LOSS CASE HAVING TAX EFFECT MOR E THAN THE PRESCRIBED LIMIT, WHICH SHOULD BE TAKEN INTO ACCOUNT, (B) THAT THIS IS A COMPOSITE ORDER FOR MANY ASSESS MENT YEARS WHERE TAX EFFECT WILL BE MORE THAN THE PRESCRIBED LIMIT AS PER PARA 5 OF A BOVE INSTRUCTIONS, (C) THAT THERE IS OTHER YEAR PENDING AS DISPUTED O N THE SINGULAR ISSUE, (D) THAT IN THE CASE OF REVENUE, WHERE CONSTITUTIO NAL VALIDITY OF THE PROVISIONS OF THE ACT OR I.T. RULES 1962 ARE UNDER CHALLENGE , (E) THAT BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, (F) THAT REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN A CCEPTED BY THE DEPARTMENT AND THE SAME IS UNDER CHALLENGE. 4 ITA 1889/K/2010 SM. ANUPAMA TANTIA. A.Y.03-04 THE LD. DR COULD NOT POINT OUT ANY OF THE EXCEPTION S AS PROVIDED ABOVE. ACCORDINGLY, THIS BEING A TAX EFFECT CASE, WE DISMISS THE APPEAL OF T HE REVENUE IN LIMINE WITHOUT GOING INTO MERITS AND AS UNADMITTED. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 4. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . . , !' , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( ' ' ' ') )) ) DATED 12 TH OCTOBER, 2011 ./ $01 2 JD.(SR.P.S.) !- 3 +4 5!4&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT ITO, WARD-39(1), KOLKATA. 2 +,)* / RESPONDENT, SM. ANUPAMA TANTIA, 42A, C. R. AVENUE , KOLKATA-700 012. 3 . -$ ( )/ THE CIT(A), KOLKATA 4. -$ / CIT, KOLKATA 5 . => +$ / DR, KOLKATA BENCHES, KOLKATA ,4 +/ TRUE COPY, !-$?/ BY ORDER, 1 /ASSTT. REGISTRAR .