M/s Kangan Design Estate, Chandigarh V. ITO, Chandigarh

ITA 201/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80841 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 18-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS. 200 & 201/CHD/2013 ASSESSMENT YEAR: 2005-06 & 2007-08 M/S KANGAN DESIGN ESTATES, VS. THE ITO, MANIMAJRA, WARD 3(4), CHANDIGARH CHANDIGARH PAN NO. AAGFK7166D (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI J.S. NAGAR & ITA NO. 80/CHD/2013 ASSESSMENT YEAR: 2005-06 THE ITO, VS. . M/S KANGAN DESIGN ESTATE, WARD-3(4), MANIMAJRA CHANDIGARH PAN NO. AAGFK7166D APPELLANT BY : SHRI J.S.NAGAR RESPONDENT BY : NONE DATE OF HEARING : 15.07.2014 DATE OF PRONOUNCEMENT : 05.08.2014 ORDER PER T.R.SOOD, A.M. BOTH THE APPEALS FILED BY THE ASSESSEE ARE DIFFEREN T ASSESSMENT YEARS ARE AGAINST THE SEPARATE ORDERS DATED 1.11.2012 OF CIT (APPEALS), CHANDIGARH AND IN ITA NO. 80/CHD/2013 THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER DATED 1.12.2012 OF CIT(A) CHANDIGARH. 2. FIRST WE SHALL DEAL WITH THE APPEALS OF ASSESSEE IN ITA NOS. 200 & 201/CHD/2013. 2 3. EARLIER, THESE CASES WERE FIXED FOR HEARING ON N UMBER OF TIMES I.E. ON 21.3.2013, 17.6.2013, 12.9.2013, 1.10.2013, 2.12.20 13 AND 09.01.2014 BUT ON THAT OCCASIONS EITHER THE BENCH DID NOT FUNCTION OR THE CASE WAS ADJOURNED AT THE REQUEST OF THE COUNSEL OF THE ASSESSEE. LATER ON, THE CASE WAS ADJOURNED TO 15.7.2014 FOR WHICH A NOTICE OF HEARING WAS SENT TO THE ASSESSEE THROUGH RAPD BUT THE SAME WAS RECEIVED BACK WITH A COMMENT ADDR ESSEE MOVED. FURTHER, THE ASSESSEE HAS NOT INFORMED NEW ADDRESS TO THE TR IBUNAL. IT, THEREFORE, APPEARS THAT THE ASSESSEE IS NOT INTERESTED TO PROSECUTE TH E MATTER. THE LAW AIDS THOSE WHO ARE VIGILANT, NOT THOSE WHO SLEEP UPON THEIR RI GHTS. THIS PRINCIPLE IS EMBODIED IN WELL KNOWN DICTUM, VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT. CONSIDERING THE FACTS AND KEEP ING IN VIEW THE PROVISIONS OF RULE 19(2) OF THE INCOME-TAX APPELLAT E TRIBUNAL RULES AS WERE CONSIDERED IN THE CASE OF CIT VS. MULTIPLAN INDIA L TD., (38 ITD 320)(DEL), WE TREAT THESE APPEALS AS UNADMITTED. 4. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MADH YA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (223 ITR 480) WHEREIN IT HAS BEEN HELD AS UNDER: IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. 5. SIMILARLY, HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495 RETURNED THE REFERENCE UNANSWERED SINCE THE ASSESSEE REMAINED ABSENT AND THERE WAS NO T ANY ASSISTANCE FROM THE ASSESSEE. 6. THEIR LORDSHIPS OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. B. BHATTACHARGEE & ANOTHER (118 ITR 461 AT PAGE 477-4 78) HELD THAT THE APPEAL DOES NOT MEAN, MERE FILING OF THE MEMO OF APPEAL BU T EFFECTIVELY PURSUING THE SAME. 3 7. SO, BY RESPECTFULLY FOLLOWING THE VIEW TAKEN IN THE CASES CITED SUPRA, WE DISMISS THESE APPEALS FOR NON-PROSECUTION. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED IN LIMINE. ITA NO. 80/CHD/2013 9. AS REGARDS THE ISSUE INVOLVED IN THIS APPEAL, ON PERUSAL OF THE RECORDS, IT WAS FOUND THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN THE AMOUNT PRESCRIBED BY THE CBDT WHERE DEPARTMENT OUGH T NOT TO HAVE FILED THE APPEAL. 10. THE LEARNED D.R. ALTHOUGH SUPPORTED THE ORDER O F THE ASSESSING OFFICER BUT COULD NOT CONTROVERT THE AFORESAID FACT THAT TA X EFFECT IN THIS APPEAL IS LESS THAN RS.3,00,000/-. 11. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIN D THAT THE CBDT HAS ISSUED INSTRUCTION NO.3 OF 2011 DATED 09.02.2011, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 3,00,000/- FOR FILING THE AP PEAL BEFORE THE TRIBUNAL. 12. IT IS NOT DISPUTED THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME-TAX AUTHORITIES ARE BINDING ON THOSE A UTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VI EW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CA SE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 13. KEEPING IN VIEW THE CBDT INSTRUCTION NO.3 OF 20 11 DATED 09.02.2011, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FI LED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FOR TIFIED BY THE FOLLOWING DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT :- 4 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 14 IN THE CASE BEFORE US SINCE THE APPEAL HAVE BEEN FILED IN 2013 WHEREAS THE INSTRUCTION NO. 3/11 HAS BEEN ISSUED BY THE CBDT ON 9.02.2011, THEREFORE, IN OUR OPINION, THE REVENUE SHOULD NOT FILE THIS APPEA L BECAUSE INSTRUCTIONS ARE BINDING ON THE DEPARTMENT. 15. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 16. IN THE RESULT, BOTH OF APPEALS OF THE ASSESSEE AS WELL AS APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.08.2014 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 5 TH AUGUST, 2014 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR