DCIT, Circle - 4, Kolkata, Kolkata V. M/s. The Punjab Produce & Trading Co. Pvt. Ltd., Kolkata

ITA 2134/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48090 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2011
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 26-11-2010
• Court: TRIBUNAL
• Department Lawyers: B R PURKAYASTHA
• Assessee Lawyers: S BHAUMIK
• 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 . 2134/KOL/2010 %& '(/ ASSESSMENT YEAR : 2005-06 (*+ / APPELLANT ) D.C.I.T., CIRCLE-4, KOLKATA - % - - VERSUS - . (-.*+/ RESPONDENT ) M/S.THE PUNJAB PRODUCE & TRADING CO.PVT. LTD.,. KOLKATA (PAN: AAACT 1705 D) *+ / 0 '/ FOR THE APPELLANT: SHRI B.R.PURKAYASTHA, SR.DR -.*+ / 0 '/ FOR THE RESPONDENT: SHRI S.BHAUMIK '! / ORDER ( (( ( ! ! ! !) )) ), , , , '# PER SHRI AKBER BASHA, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 25.02.2010 OF THE CIT(A)-IV, KOLKATA PERTAINING TO A.YR. 2005-06. 2. THERE IS A DELAY OF 41 DAYS IN FILING OF THE 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. 3. IN THIS APPEAL THE REVENUE HAS TAKEN THE FO LLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW IN DIRECTING THE A.O. TO ALLOW INTEREST U/S 244 A CLAIMED BY THE ASSESSEE 2 WITHOUT APPRECIATING THE FACT THAT THE TIME TAKEN B Y THE APPELLATE AUTHORITY CANNOT BE TREATED AS DELAY ATTRIBUTABLE TO THE A.O. GRANTING THE REFUND. 2. 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 AUTHORISED 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 OBJECTION TO THE CONTENTI ON OF THE LD. AR 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 RAISED BY THE DEPARTMENT IS LESS THAN RS.2 LAKHS. THE REVISED INS TRUCTION OF THE CBDT NO.5/2008 DATED 15.05.2008 IS WELL APPLICABLE IN THE PRESENT CASE AND THEREFORE, IN OUR CONSIDERED OPINION, THE REVENUE SHOULD HAVE REFRAIN ED FROM FILING SECOND APPEAL BEFORE THE TRIBUNAL. IT WOULD BE APT TO QUOTE THE O BSERVATION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS.- ITAT 232 ITR 207 AT PAGE 2 16 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 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 CORPO RATION LTD. REPORTED IN 267 ITR 3 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DE CISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID D OWN 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 CONTRAR Y TO THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRA RY 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 LD. CIT(A), IS CO NTRARY 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 04.05.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER ! ! ! !, ,, , '# '# '# '# , AKBER BASHA, ACCOUNTANT MEMBER. ( (( (1# 1# 1# 1#) )) ) DATE: 04.05.2011. '! / -2 3'2'4- COPY OF THE ORDER FORWARDED TO: 1. M/S. THE PUNJAB PRODUCE & TRADING CO.PVT. LTD, 9/1, R.N.MUKHERJEE ROAD, KOLKATA-700001. 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 R.G.(.P.S.)