ACIT, Circle - 39, Kolkata, Kolkata V. M/s. Senco Jewellery House, Kolkata

ITA 1962/KOL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75104 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2014
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 31-03-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 21-10-2010
• Court: TRIBUNAL
• Department Lawyers: A K SINGH LD CIR
• Assessee Lawyers: VIGYANESHWAR NATH DATTA LD
• Keywords: Question of law; Tax effect

Judgement Text

IN INCOME TAX APPELLATE TRIBUNAL BENCH C,KOLKATA (BEFORE HONBLE SHRI SHAMIM YAHYA, AM & & HONB LE SHRI GEORGE MATHAN, JM.) I.T.A.NO. 1962/KOL/2010 A.Y 2002-03 A.C.I.T CIRCLE-39, KOLKATA -VS- M/S. SENCO JEWELLERY HOUSE PAN:AAKFS 4237R (APPELLANT) (RESPONDENT) I.T.A.NO. 1965/KOL/2010 A.Y 2005-06 A.C.I.T CIRCLE-39, KOLKATA -VS- M/S. SENCO JEWELLERY PALACE PAN:AABFT 5439P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SINGH, LD.CIR/ SR.DR RESPONDENT BY : SHRI VIGYANESHWAR NATH DATTA, ADVOCATE, LD.AR DATE OF HEARING : 24-03-2014 DATE OF PRONOUNCEMENT : 26 -03-2014 : O R D E R : PER BENCH: THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST THE SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-IV, KO LKATA IN APPEAL NO.297/CIT(A)- IV/08-09 AND IN APPEAL NO. 295/CIT(A)-IV/08-09 DATE D 24-03-2010 FOR THE ASSESSMENT YEARS 2002-03 AND 2005-06 RESPECTIVELY. 2. SHRI A.K SINGH, LEARNED CIT/SR.DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI VIGYANESHWAR NATH DATTA, ADVOCATE, LEARNED AR REPRESENTED ON BEHALF OF THE ASSESSEE 3. AT THE TIME OF HEARING OF THE APPEAL BEFORE US, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE TAX EFFECT IN THI S CASE EXCLUDING INTEREST IS BEING LESS THAN RS.2 LAKHS AND AS PER REVISED CIRCULAR NO. 279 /MISC.-64/05-ITJ DATED 24.10.05 CBDT HAS DIRECTED THE REVENUE AUTHORITIES TO FILE A PPEAL ONLY IN THOSE CASES WHERE THE TAX EFFECT EXCEEDS THE MONETARY LIMIT OF RS.2 L AKHS EXCEPT IN CASES INVOLVING SUBSTANTIAL QUESTION OF LAW. IT HAS FURTHER BEEN SU BMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SUCH INSTRUCTION OF CBDT HAS COME INT O FORCE FOR THE APPEALS TO BE FILED ITA NOS.1962 &1965/KOL/10-C-PB 2 ON OR AFTER 31.10.2005 AND SINCE IN THE PRESENT CAS E APPEAL HAS BEEN FILED ON 15 TH FEBRUARY, 2008, THE ABOVE CIRCULAR OF CBDT IS WELL APPLICABLE AND, THEREFORE, THE APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISS ED KEEPING IN VIEW OF THE ABOVE CIRCULAR / INSTRUCTION. 4. DURING THE COURSE OF HEARING, THE LD. A.R. OF THE A SSESSEE HAS FURTHER POINTED OUT THAT THE TAX EFFECT IS LESS THAN RS. 2 LAKHS AN D AS SUCH THE APPEAL FILED BY THE DEPARTMENT IS NOT MAINTAINABLE IN VIEW OF THE BOARD S INSTRUCTION NO. 1979 (F. 279/126/96/ITJ) DATED 27 TH MARCH, 2000 AND FURTHER EXPLAINED BY THE INSTRUCTI ON NO.1985 DATED 29 TH JUNE, 2000 (F. NO. 279/126/98-ITJ) AND INSTRUCTION NO. 5 DT. 16.7.07 CLARIFYING ONLY TAX EFFECT THAT NO SECOND A PPEAL IS TO BE FILED IF THE TAX EFFECT IS LESS THAN PRESCRIBED LIMIT BY CBDT. 4.1 THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE REVENUES APPEAL SHOULD BE DISMISSED IN VIEW OF THE DECISIONS OF THE BOMBAY HI GH COURT IN THE CASE OF CIT VS.- CAMCO COLOUR LTD. REPORTED IN 254 ITR 565 WHEREIN I T HAS BEEN HELD THAT THE CIRCULAR IS BINDING ON THE REVENUE AND AN APPEAL OR REFERENC E CONTRARY TO THE INSTRUCTION ISSUED IN THE CIRCULAR WOULD NOT BE CONSIDERED BY THE COUR T AND ALSO IN THE CASE OF PITHWA ENGINEERING WORKS REPORTED IN 276 ITR 519 MUMBAI. 5. HOWEVER, THE LD. D.R. HAS SUBMITTED THAT THE BOA RDS CIRCULAR RESTRICTING THE REVENUE EFFECT FOR FILING AN APPEAL BEFORE THE TRIB UNAL SHOULD NOT BE HINDRANCE IN NOT FILING AN APPEAL AND IN VIEW OF THE JUDGMENT OF HON BLE ALLAHABAD HIGH COURT IN CASE OF JUGAL KISHORE ARORA VS.- DCIT REPORTED IN 269 I TR 133 AND THE ORDER OF PUNJAB & HARIYANA HIGH COURT IN CASE OF RANI PALIWAL VS.- C IT REPORTED IN 268 ITR 220. 6. WE OBSERVE THAT THE TAX PAYABLE IN RESPECT OF GR OUNDS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS.2 LAKHS AND AS PER REVIS ED INSTRUCTION OF THE CBDT NO. 279 DATED 24 TH OCTOBER, 2005 W.E.F. 31.10.2005, THE REVENUE SHOUL D HAVE REFRAINED FROM FILING SECOND APPEAL BEFORE THE TRIBUNAL. IT W OULD BE APT TO QUOTE THE OBSERVATION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS.- IT AT 232 ITR 207 AT PAGE 216 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 ITA NOS.1962 &1965/KOL/10-C-PB 3 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. 7. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL FI LED BY THE DEPARTMENT AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A) IS CONTRARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE . 8. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26-03-2014 SD/- SD/- (SHAMIM YAHYA ) ( GEORGE MATHAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 26-03-2014 *P.PAUL(SR.P.S.) COPY OF THE ORDER IS FORWARDED TO :- 1) ACIT, CIRCLE-39, KOLKATA, 8 TH FL., PODDAR COURT, 18 RABINDRA SARANI, KOL-1 2) M/S. SENCO JEWELLERY 170/2 B.B GANGULY ST, KOL-1 2 & M/S. SENCO JEWELLERY PALACE 199, B.B GANGULY ST, KOL-12 3) C.I.T.(APPEALS)- 4) C.I.T., 5) D.R., I.T.A.T. (TRUE COPY) BY ORDER ASSTT. REGISTRAR I.T.AT., KOLKATA