ITO, Ward - 34(1), Kolkata, Kolkata V. B. D. Enterprises, Kolkata

ITA 2078/KOL/2010

• Counselvise Citation: 207823514 RSA 2010
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 29-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 18-11-2010
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: SUNIL SURANA
• Keywords: Income from undisclosed sources; Tax effect
• Section: 260A

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA () BEFORE . .. . , , , , !, SHRI N.VIJAYAKUMARAN, JUDICIAL MEMBER. ' ' ' ' /AND . .. .#$ #$#$ #$. .. . , %& ! SHRI C.D.RAO, ACCOUNTANT MEMBER '' '' '' '' / ITA NO . 2078/KOL/2010 () *+/ ASSESSMENT YEAR : 2006-07 (-. / APPELLANT ) I.T.O., WARD-34(1), KOLKATA - - - VERSUS - . (01-./ RESPONDENT ) B.D.ENTERPRISES (PAN: AAHFB 2944 F)) -. 2 3 %/ FOR THE APPELLANT: SHRI S.K.ROY 01-. 2 3 %/ FOR THE RESPONDENT: SHRI SUNIL.SURANA 4 2 $& /DATE OF HEARING : 29.11.2011. 5* 2 $& /DATE OF PRONOUNCEMENT : 29.11.2011. %6 / ORDER ( (( ( . .. . ) )) ), , , , ( ! PER SHRI N.VIJAYAKUMARAN,JM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 05.08.2010 OF THE CIT(A)-XX, KOLKATA PERTAINING TO A.YR. 2006-07. 2. IN THIS APPEAL THE REVENUE HAS TAKEN THE FOLLOW ING GROUNDS :- 1. THE LD. CIT(A)-XX,KOLKATA HAS ERRED ON FACT FOR DELETING THE ADDITION OF RS.8,79,872/- IN RESPECT OF INCOME FROM UNDISCLOSED SOURCES. 2. THE DEPARTMENT CRAVES TO ADD OR ALTER THE GROUND S OF APPEAL. 3. THERE IS A DELAY OF 5 DAYS IN FILING OF T HE APPEAL BY THE REVENUE FOR WHICH THE REVENUE HAS FILED A CONDONATION PETITION EXPLAINING THE REASONS FOR SUCH DELAY. AFTER CONSIDERING THE SUBMISSIONS BY THE REVENUE THE DELA Y IS CONDONED. 2 4. AT THE TIME OF HEARING THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT IN THIS CASE THE TAX EFFECT IS BELOW RS. 3 LAK HS WHICH COMES TO RS.2,96,165/-. IN SUPPORT OF THIS THE LD. COUNSEL SUBMITTED THE CALCU LATION OF THE TAX EFFECT BEFORE US. SINCE THE TAX EFFECT IN THIS CASE IS BELOW RS.3 LAK HS AS PER CBDT INSTRUCTION NO.3/2011(F.NO.279/MISE/142/2007-ITJ) DATED 9.2.201 1 WHEREIN IT HAS BEEN ENHANCED THE LIMITS FOR FILING OF APPEALS BEFORE TH E TRIBUNAL TO RS.3 LAKHS THE REVENUES APPEAL IS LIABLE TO BE DISMISSED IN LIMIN E. IN VIEW OF THE LATEST ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DELH I RACE CLUB IN ITA NO.128/2008 WHEREIN THE HONBLE HIGH COURT OPINED THAT THE CIRC ULAR WOULD ALSO APPLY TO THE PENDING CASES. THEREFORE, AS PER THE INSTRUCTION OF CBDT CIRCULAR THE REVENUE IS BARRED FROM FILING OF THE APPEAL BEFORE THIS TRIBUN AL. 5. THE LD. DR APPEARING ON BEHALF OF THE REVENUE D ID NOT RAISE ANY OBJECTION TO THE CONTENTION OF THE LD. AR OF THE ASSESSEE. . 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIAL ON RECORD KEEPING IN VIEW OF THE FACT THAT THE LD. DR COULD N OT GIVE CONTRARY JUDGEMENT TO THE ONE ON WHICH THE LD. COUNSEL FOR THE ASSESSE HAS RE LIED WHEREIN THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DELHI RACE CLUB IN ITA NO.128/2008 DATED 03.03.2011 HAS HELD AS UNDER :- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S.4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASE S WHERE THE TAX EFFECT IS LESS THAN 10 LACS, ARE NOT TO BE ENTERTAINED. THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TA X-III V. M/S. P.S.JAIN AND CO. BEING ITA NO.179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 6.1. ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROUN DS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS.3 LAKHS AND AS PER REVISED INSTRUCT ION OF THE CBDT NO.3 DATED 9.2.2011. WHEREIN THE CBDT HAS REVISED THE FILING L IMITS FILED BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT AS UNDER :- BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS. 3 L AKHS, APPEALS U/S 260A OF THE IT ACT 3 BEFORE THE HONBLE HIGH COURT : RS.10 LAKHS AND BEFORE THE HONBLE SUPREME COURT : RS.25 LAKHS SINCE IN THE PRESENT CASE THE ABOVE REVISED INSTRUC TION IS WELL APPLICABLE IN VIEW OF THE HONBLE DELHI HIGH COURT (SUPRA) HENCE IN OUR OPINI ON THE REVENUES APPEAL IS NOT MAINTAINABLE IN VIEW OF THE SAID CIRCULAR OF THE CB DT. 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 CONFIRMED BY THE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATIO N LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISI ONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THA T WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUN D BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY T O THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRA RY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9.2.2011. 6.3. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF T HE HONBLE DELHI HIGH COURT, WE HOLD THAT THE APPEAL FILED BY THE DEPARTMENT, AG AINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CONTRARY TO THE POLICY DECISION OF T HE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED IN LIMINE . 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2011 SD/- SD/- . .. .#$ #$#$ #$. .. . , %& %& %& %& ! ! ! ! C.D.RAO, ACCOUNTANT MEMBER . .. . , ,, , ( ( ( ( ! ! ! !, N.VIJAYAKUMARAN, JUDICIAL MEMBER ( (( ($& $& $& $&) )) ) DATE: 29.11.2011 R.G.(.P.S.) 4 %6 2 0(( 7%*8- COPY OF THE ORDER FORWARDED TO: 1. B.D.ENTERPRISES, 4, SYNAGOGUGE STREET, KOLKATA-7000 01.. 2 THE I.T.O., WARD-34(1), KOLKATA 3. THE CIT, 4. THE CIT(A)-XX, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 1 0(/ TRUE COPY, %6/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES