DCIT, Circle - 23, Hooghly, Hooghly V. M/s. Disha Eye Hospital (Hooghly) Pvt. Ltd., Hooghly

ITA 206/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0737 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 11-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S M S T AUHEED
• Assessee Lawyers: V N PUROHIT
• Keywords: Tax effect

Judgement Text

1 ITA NO.206/KOL/2016 DISHA EYE HOSPITAL (HOOGHLY) PVT. LTD.., AY: 2011-1 2 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VA RKEY, JM] I.T.A. NO. 206/KOL/2016 ASSESSMENT YEAR: 2011-12 DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-23, HOOGHLY VS. M/S. DISHA EYE HOSPITAL (HOOGHLY) PVT. LTD. (PAN:AACCD1704H) APPELLANT RESPONDENT DATE OF HEARING 11.12.2017 DATE OF PRONOUNCEMENT 11.12.2017 FOR THE APPELLANT SHRI S.M.S. TAUHEED, ADDL. CIT, S R. DR FOR THE RESPONDENT SHRI V. N. PUROHIT, AR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF LD. CIT(A)-6, KOLKATA DATED 30.11.2015 FOR AY 2011-12. 2. THIS APPEAL OF REVENUE IS TIME BARRED BY 10 DAY S AND A CONDONATION PETITION ALONG WITH AN AFFIDAVIT HAS BEEN FILED BY THE REVENUE EXP LAINING THE REASONS FOR DELAY IN FILING THE APPEAL. AFTER CONSIDERING THE CONDONATION PETITIO N AND THE CONCESSION GIVEN BY THE LD. AR, WE CONDONE THE DELAY AND APPEAL IS ADMITTED FOR HEARING. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE BROUGHT TO OUR NOTICE THAT THE TAX EFFECT IN THIS CASE COMES TO LESS THAN RS. 10 LACS AND ALSO POINTED OUT THAT EDUCATION CESS @ 3% EVEN IF INCLUDED IT WILL BE BELOW THE TAX EFFECT OF RS. 10 LACS. HE ALSO DREW OUR ATTENTION TO THE DECISION OF ITAT, DELHI BENCH IN ITA NO. 394 6/DEL/2010, ACIT VS. M/S. DALLAS FINANCE LTD. FOR AY 2007-08 DATED 07.04.2017 WHEREI N A QUESTION AROSE AS TO WHETHER EDUCATION CESS SHOULD BE INCLUDED WHEN CONSIDERING THE TAX EFFECT OF RS. 10 LACS. THE TRIBUNAL HELD THAT IN OUR VIEW, SURCHARGE AND EDUCATION CESS SHALL NOT BE INCLUDE IN WORD TAX FOR THE PURPOSE OF EXAMINING OF TAX EFFECT AS ENVISAGED IN CIRCULAR OF BOARD DT. 10 TH DECEMBER, 2015 NO. 21/2015. THUS, THE TAX EFFECT B EING LESS THAN 10 LAKHS, IMPUGNED 2 ITA NO.206/KOL/2016 DISHA EYE HOSPITAL (HOOGHLY) PVT. LTD.., AY: 2011-1 2 APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND THEREFORE SAME IS HEREBY DISMISSED. OUR ORDER HAS NO EFFECT ON THE MERITS OF THIS CASE. 4. WE FIND THAT THE APPEAL OF THE REVENUE FALLS IN THE KEN OF THE CBDT CIRCULAR NO. 21/2015 DATED 10.12.2015, WHEREIN THE CBDT HAS DIRE CTED THE DEPARTMENT TO WITHDRAW/NOT PRESS THE APPEAL IF THE TAX EFFECT IS LESS THAN RS. 10 LACS BEFORE THE ITAT. ON PERUSAL OF THE CIRCULAR NO. 21 / 2015 DATED 10.12.2015 AND THE MAT ERIALS AVAILABLE ON RECORD, WE FIND THAT THE REVENUES CASE DOES NOT FALL UNDER ANY OF THE E XCEPTION CLAUSE AS PROVIDED IN THE CIRCULAR, AS THIS IS COVERED. WE ALSO FIND THAT TH E CIRCULAR MAKES IT VERY CLEAR THAT THE REVISED MONETARY LIMITS SHALL APPLY RETROSPECTIVELY TO PENDING APPEALS ALSO. WE FIND THAT THE CIRCULAR IS BINDING ON THE TAX AUTHORITIES. THIS PO SITION HAS BEEN CONFIRMED BY THE HONBLE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS V S INDIAN OIL CORPORATION LTD REPORTED IN 267 ITR 272 (SC). HENCE, WE HOLD THAT THE APPEAL OF THE REVENUE DESE RVES TO BE DISMISSED IN TERMS OF LOW TAX EFFECT VIDE CIRCULAR NO.21 / 20 15 DATED 10.12.2015. ACCORDINGLY, THIS BEING A LOW TAX EFFECT CASE, WE DISMISS THIS APPEAL OF REVENUE IN LIMINE, AS UNADMITTED, WITHOUT GOING INTO THE MERITS OF THE CASE. IN CASE THE REVENUE LATER FINDS THAT THE TAX EFFECT IS MORE THAN RS. 10 LAKHS THEN IT IS AT LIBERTY TO MOV E APPROPRIATE APPLICATION TO RECALL THIS ORDER. WITH THIS CAVEAT, WE ARE INCLINED TO DISMIS S THIS APPEAL OF THE REVENUE ON THE GROUND THAT IT IS BELOW THE TAX EFFECT OF LESS THAN RS.10 LAKH. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (J. SUDHAKAR REDDY) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11 TH DECEMBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT DCIT, CIRCLE-23, HOOGHLY 2 RESPONDENT . M/S. DISHA EYE HOSPITAL (HOOGHLY) P VT. LTD., G.T. ROAD, P.O. SHEORAPHULI, DIST. HOOGHLY-712 223. 3. THE CIT(A) KOLKATA. 4. 5. CIT KOLKATA DR, GUWAHATI BENCH, GUWAHATI / TRUE COPY, BY ORDER, SR. PVT. SECRETARY