DCIT, Circle - 4, Kolkata, Kolkata V. M/s. The Ananda Bag Tea Co. Ltd., Kolkata

ITA 2002/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48103 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2011
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 02-11-2010
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KOLHESR
• Assessee Lawyers: S M SURANA
• Keywords: 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 . 2002/KOL/2010 %& '(/ ASSESSMENT YEAR : 2002-03 (*+ / APPELLANT ) D.C.I.T., CIRCLE-4, KOLKATA - % - - VERSUS - . (-.*+/ RESPONDENT ) M/S. THE ANANDA BAG TEA CO.LTD., KOLKATA (PAN: AAACT 9714 F) *+ / 0 '/ FOR THE APPELLANT: SHRI PIYUSH KOLHE,SR.DR -.*+ / 0 '/ FOR THE RESPONDENT: SHRI S.M.SURANA '! / ORDER ( (( ( ! ! ! !) )) ), , , , '# PER SHRI AKBER BASHA, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER DATED 24.12.2009 OF THE CIT (A)-IV, KOLKATA PERTAINING TO THE ASSESSMENT YE AR 2002-03. 2. THERE IS A DELAY OF 21 DAYS IN FIL ING OF THE APPEAL BY THE REVENUE FOR WHICH THE REVENUE HAS FILED A CONDONATION PETITION EXPLAI NING THE REASONS FOR SUCH DELAY. AFTER CONSIDERING THE SUBMISSIONS BY THE REVENUE, T HE DELAY IS CONDONED. 3. IN THIS APPEAL, THE REVENUE HAS TAKEN THE FOLLO WING GROUNDS OF APPEAL:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, LD. CIT (A), KOLKATA ERRED IN LAW IN DELETING THE ADDITION OF RS.9,16,93 7/- BEING CESS ON GREEN LEAF ONLY IN VIEW OF THE DECISION OF HONBLE CALCUTTA HI GH COURT, PRONOUNCED IN THE 2 CASE OF AFT INDUSTRIES LTD. VS. CIT [270 ITR 167] W ITHOUT CONSIDERING THAT THE REVENUE HAS FILED SLP AGAINST THAT ORDER AND FINALI TY IN THIS CASE HAS NOT ARRIVED YET. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A)-IV, KOLKATA ERRED IN DELETING THE DISALLOWANCE OF RS.1,95,194/- ON ACCOUNT OF EXPENSE ON REPAIRS AND REPLACEMENT OF GAS PIPE LINE. 3. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DELE TE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. AT THE TIME OF HEARING THE LEARNED AUTHORIZED REPRESENTATIVE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT IN THIS CA SE THE TAX EFFECT IS BELOW RS.2 LAKHS. THEREFORE, AS PER THE INSTRUCTION OF CBDT CIRCULAR THE REVENUE IS BARRED FROM FILING OF THE APPEAL BEFORE THIS TRIBUNAL. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE APPEAR ING ON BEHALF OF THE REVENUE DID NOT RAISE ANY SERIOUS OBJECTION TO THE CONTENTION OF THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF THE ASSESSMENT ORDER, IT IS OBSERVED THAT THE TAX EFFEC T IN THIS CASE IS BELOW RS.2 LAKHS. 6.1. ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROU NDS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS.2 LAKHS AND AS PER REVIS ED INSTRUCTION OF THE CBDT NO. 5/2008 DATED 15.05.2008 AND SINCE IN THE PRESENT CA SE, THE ABOVE REVISED INSTRUCTION OF CBDT IS WELL APPLICABLE AND THEREFORE, IN OUR CONSI DERED OPINION, THE REVENUE SHOULD HAVE REFRAINED FROM FILING SECOND APPEAL BEFORE THE TRIBUNAL. IT WOULD BE APT TO QUOTE THE OBSERVATION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS.- ITAT 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 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 3 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. 6.2. 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 CORP ORATION LTD., REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIE R DECISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND L AID DOWN 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 CONTRARY TO THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.5 OF 2008 DATED 15.5.2008. 6.3. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL FILED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDER OF THE CIT(A), IS CONTRA RY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE . 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.05.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER ! ! ! !, ,, , '# '# '# '# , AKBER BASHA, ACCOUNTANT MEMBER. ( (( (1# 1# 1# 1#) )) ) DATE: 05.05.2011. R.G.(.P.S.) 4 '! / -2 3'2'4- COPY OF THE ORDER FORWARDED TO: 1. M/S. THE ANANDA BAG TEA CO.LTD., 11E, EVEREST HOUSE , 46C, J.L.NEHRU RD., KOLKATA-700071. 2 THE DCIT, CIRCLE-4, KOLKATA 3. THE CIT, 4. THE CIT(A)-IV, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .2 -/ TRUE COPY, '!%:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES