DCIT, Circle - 4, Kolkata, Kolkata V. M/s. Sannyasithan Tea Co. Pvt. Ltd., Kolkata

ITA 2272/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9231 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 27-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C NAYAK
• Keywords: Audit objection; Tax effect
• Section: 260A; 2

Judgement Text

, SMC(B) , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC(B) BENCH : KOLKATA () BEFORE , ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM] / I.T.A NO. 2272/KOL/2010 !' !' !' !'/ // / ASSESSMENT YEAR : 2007-08 DEPUTY COMMISSIONER OF INCOME-TAX VS M/S. SANNYAS ITHAN TEA CO. PVT. LTD. CIRCLE-4, KOLKATA. (PAN-AAECS 3407 Q) ( $% /APPELLANT ) (&'$%/ RESPONDENT ) FOR THE APPELLANT: SHRI P. C. NAYAK FOR THE RESPONDENT: SHRI RAVI TULSIYAN () / ORDER THIS APPEAL BY REVENUE IS ARISING OUT OF THE ORDER OF CIT(A)-IV, KOLKATA IN APPEAL NO.118/CIT(A)-IV/09-10 VIDE DATED 12.03.201 0. THE ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-4, KOLKATA OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE HIS ORDER DA TED 11.11.2009. 2. THE APPEAL OF THE REVENUE IS DELAYED BY 71 DAYS AND DCIT, CIRCLE-IV, KOLKATA HAS FILED AN AFFIDAVIT ALONG WITH AN APPLICATION ST ATING THE REASON FOR DELAY AS UNDER: I, SRI PRIYABRATA PRAMANIK, SON OF LATE RAMAKANTA P RAMANIK, WORKING AS DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-4, KOLKAT A, P-7, CHOWRINGHEE SQUARE, KOLKATA, SOLEMNLY AFFIRM THAT THE LAST DATE FOR FILING SECOND APPEAL AGAINST THE APPELLATE ORDER VIDE NO.118/CIT(A)-IV/0 9-10 DATED 12.03.2010 IN THE CASE OFM/S. SANNAYSITHAN TEA CO. PVT. LTD. A.Y. 2007-08 WAS ON 17.10.2010. BUT IT COULD NOT BE FILED FOR FOLLOWING REASONS: DATE R E A S O N S 17.10.2010 TO 15.12.2010 APPLICATION FOR FILING SE COND APPEAL WAS NOT COMMUNICATED. 16.12.2010 APPLICATION FOR FILING SECOND APPEAL COMMUNICATED 17.12.2010 HOLIDAY 18.12.2010 TO 19.12.2010 SATURDAY AND SUNDAY 20.12.2010 TO 24.12.2010 THE PAPERS WERE BEING PROC ESSED FOR FILING 25.12.2010 TO 26.12.2010 SATURDAY AND SUNDAY 27.12.2010 THE PAPERS ARE BEING FILED FOR SECOND APPEAL. 2 WITHIN A SPAN OF ONE WEEK THIS OFFICE RECEIVED 93 A PPELLATE ORDERS FROM THE OFFICE OF LD. CIT(A) RELATING TO SEVERAL MONTHS BATCHES AP ART FROM HAVING 19 OLD APPELLATE ORDER OF WHICH APPEAL SCRUTINY REPORTS AR E BEING PREPARED AND SENT TO THE OFFICE OF CIT, KOL-II, KOLKATA. BESIDES THIS, DUE TO HUGE PENDENCY OF TIME BARRING CASES TO BE COMPLETED BY 31.12.2010 A DELAY OCCURRED IN SENDING PAPERS FOR F ILING OF APPEAL. THAT THE DELAY IS NOT DELIBERATE AND THE RESPONDENT DOES NOT GAIN IN ANY MANNER BY DELAY COMMITTED. THAT THERE WAS SUFFICIENT CAUSES FOR THE DELAY AND IT IS PRAYED THAT THE SAME MAY BE CONDONED. 3. THE LD. COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THE POSITION THAT THE DELAY CAN BE CONDONED AND HE HAS NO OBJECTION FOR THE SAME. AS THE LD. COUNSEL FOR THE ASSESSEE AGREED FOR CONDONATION OF DELAY, WE, IN VIEW OF ABO VE REASON STATED BY THE ASSESSING OFFICER, CONDONE THE DELAY AND ADMIT THE APPEAL. 4. AT THE OUTSET, IT WAS INFORMED BY LD. COUNSEL FOR T HE ASSESSEE THAT TAX EFFECT IN THIS APPEAL IS BELOW THE PRESCRIBED MONETARY LIMITS FOR FILING OF APPEALS BEFORE ITAT AND OTHER SUPERIOR COURTS AND THIS IS COVERED BY INSTRUCTION NO. 5 OF 2008 ISSUED BY CBDT. THE ONLY ISSUE NOW REMAINS BEFORE US IS THAT THE APPEAL OF THE REV ENUE IS BELOW THE PRESCRIBED LIMIT OF TAX EFFECT IN VIEW OF THE BOARDS INSTRUCTION ISSUED FR OM TIME TO TIME REVISING THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE ITAT AND OTHER SUPERIOR COURTS. THE APPEAL RELATES TO ASSESSMENT YEAR 2007-08 AND FILED BEFORE THE TRIBUNAL ON 27.12.2010. THE QUANTUM INVOLVED IN RESPECT OF VALUE OF FRINGE BENE FIT IS AT RS.1,17,906/- AND THE TAX EFFECT ON THIS IS RS.39,687/-. SINCE THIS APPEAL FI LED ON 27.12.2010, THE SAME WILL BE COVERED BY INSTRUCTION NO. 5 OF 2008 ISSUED ON 15.5 .2008 I.E. THE REVISED MONETARY LIMIT FOR FILING OF APPEAL BEFORE ITAT, WHEREBY THE CBDT HAS FIXED THE LIMIT OF RS. 2 LACS. THE RELEVANT CIRCULAR ISSUED BY CBDT READS AS UNDER : INSTRUCTION NO.5/2008, DATED 15-5-2008 REFERENCE IS INVITED TO BOARDS INSTRUCTIONS NO.197 9 DATED 27.3.2000, NO.1985 DATED 29.6.2000, NO.6 OF 2003 DATED 17.7.2003, NO.1 9 OF 2003 DATED 23.12.2003, NO.5/2004 DATED 27.5.2004, NO.2/2005 DATED 24.10.20 05 AND NO.5/2007 DATED 16.7.2007, WHEREIN MONETARY LIMITS FOR FILING DEPAR TMENTAL APPEALS (IN INCOME TAX MATTERS) AND OTHER CONDITIONS WERE SPECIFIED, F OR FILING APPEALS BEFORE APPELLATE TRIBUNALS, HIGH COURTS AND SUPREME COURT. 3 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION S, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS WILL BE FILED BEFORE APPE LLATE TRIBUNALS, HIGH COURTS AND SUPREME COURT AS PER MONETARY LIMITS AND CONDIT IONS SPECIFIED BELOW. 3. APPEALS WILL HENCEFORTH BE FILED ONLY IN CASES WHERE THE TAX EFFECT EXCEEDS MONETARY LIMITS GIVEN HEREUNDER:- SR.NO. APPEALS IN INCOME TAX MATTERS MONETARY LIMIT IN RS. 1. APPEAL BEFORE APPELLATE TRIBUNAL 2,00,000/- 2. APPEAL UNDER SECTION 260A BEFORE HIGH COURT 4,00,000/- 3. APPEAL BEFORE SUPREME COURT 10,00,000/- 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSEE AND THE TAX THAT WOULD HAVE B EEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESP ECT OF THE ISSUE AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREAFTER REF ERRED TO AS DISPUTED ISSUES). HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THER EON. SIMILARLY, IN LOSS CASES NOTIONAL TAX EFFECT SHOULD BE TAKEN INTO ACCOUNT. I N THE CASES OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 5. THE ASSESSING OFFICER SHALL CALCULATE TH E TAX SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES I N THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARI SE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF SUCH ASSE SSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EX CEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF A N ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMI T SPECIFIED IN PARA 3. IN OTHER WORDS HENCEFORTH, APPEALS WILL BE FILED ONLY WITH R EFERENCE TO THE TAX EFFECT IN THE RELEVANT ASSESSMENT YEAR. HOWEVER, IN CASE OF A COM POSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY, WHICH INVOLVES MORE T HAN ONE YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL ASSESSMENT YEARS EVEN IF TH E TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S), I F IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH THE TAX EFFECT EX CEEDS THE MONETARY LIMIT PRESCRIBED. 6. IN A CASE WHERE APPEAL BEFORE A TRIBUNAL OR A COURT IS NOT FILED ONLY ON ACCOUNT OF THE TAX EFFECT BEING LESS THAN THE MONET ARY LIMIT SPECIFIED ABOVE, THE COMMISSIONER OF INCOME-TAX SHALL SPECIFICALLY RECOR D THAT EVEN THOUGH THE DECISION IS NOT ACCEPTABLE, APPEAL IS NOT BEING FIL ED ONLY ON THE CONSIDERATION THAT THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPEC IFIED IN THIS INSTRUCTION. FURTHER, IN SUCH CASES, THERE WILL BE NO PRESUMPTION THAT TH E INCOME-TAX DEPARTMENT HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUES I N THE CASE OF THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR, OR IN THE CASE OF AN Y OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR, IF THE TAX EFFECT EXCEED S THE SPECIFIED MONETARY LIMITS. 7. IN THE PAST, A NUMBER OF INSTANCES HAVE COME TO THE NOTICE OF THE BOARD, WHEREBY AN ASSESSEE HAS CLAIMED RELIEF FROM THE TRI BUNAL OR THE COURT ONLY ON THE GROUND THAT THE DEPARTMENT HAS IMPLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN THE CASE OF THE ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR IN THE CASE 4 OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASS ESSMENT YEAR, BY NOT FILING AN APPEAL ON THE SAME DISPUTED ISSUES. THE DEPARTMENTA L REPRESENTATIVES/ COUNSEL MUST MAKE EVERY EFFORT TO BRING TO THE NOTICE OF TH E TRIBUNAL OR THE COURT THAT THE APPEAL IN SUCH CASES WAS NOT FILED OR NOT ADMITTED ONLY BY REASON OF THE TAX EFFECT BEING LESS THAN THE SPECIFIED MONETARY LIMIT AND TH EREFORE, NO INFERENCE SHOULD BE DRAWN THAT THE DECISIONS RENDERED THEREIN WERE ACCE PTABLE TO THE DEPARTMENT. ACCORDINGLY, THEY SHOULD IMPRESS UPON THE TRIBUNAL OR THE COURT THAT SUCH CASES DO NOT HAVE ANY PRECEDENT VALUE. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING SHOU LD BE CONTESTED IRRESPECTIVE OF THE TAX EFFECT. A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE. B) WHERE BOARDS ORDER, NOTIFICATION, INSTR UCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRAVIRES. C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. 9. THE PROPOSAL FOR FILING SPECIAL LEAVE UNDER ARTI CLE 136 OF THE CONSTITUTION BEFORE THE SUPREME COURT SHOULD, IN ALL CASES, BE S ENT TO THE DIRECTORATE OF INCOME TAX (LEGAL AND RESEARCH) NEW DELHI AND THE D ECISION TO FILE SPECIAL LEAVE PETITION SHALL BE IN CONSULTATION WITH THE MI NISTRY OF LAW AND JUSTICE. 10. THE MONETARY LIMITS SPECIFIED IN PARA 3 A BOVE WILL NOT APPLY TO WRIT MATTERS. 11. THIS INSTRUCTION WILL APPLY TO APPEALS FI LED ON OR AFTER 15TH OF MAY 2008. HOWEVER, THE CASES WHERE APPEALS HAVE BEEN FILED BE FORE 1 5TH OF MAY 2008 WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OP ERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 12. THIS ISSUES UNDER SECTION 268(1) OF THE INCOME TAX ACT, 1961. ON QUERY FROM THE BENCH, THE LD. DR COULD NOT POINT OUT ANY OF THE EXCEPTIONS AS PROVIDED IN THE CIRCULAR AS UNDER: (A) THAT THIS IS A LOSS CASE HAVING TAX EFFECT MOR E THAN THE PRESCRIBED LIMIT, WHICH SHOULD BE TAKEN INTO ACCOUNT, (B) THAT THIS IS A COMPOSITE ORDER FOR MANY ASSESS MENT YEARS WHERE TAX EFFECT WILL BE MORE THAN THE PRESCRIBED LIMIT AS PER PARA 5 OF A BOVE INSTRUCTIONS, (C) THAT THERE IS OTHER YEAR PENDING AS DISPUTED O N THE SINGULAR ISSUE, (D) THAT IN THE CASE OF REVENUE, WHERE CONSTITUTIO NAL VALIDITY OF THE PROVISIONS OF THE ACT OR I.T. RULES 1962 ARE UNDER CHALLENGE , 5 (E) THAT BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, (F) THAT REVENUE AUDIT OBJECTION IN THE CASE HAS B EEN ACCEPTED BY THE DEPARTMENT AND THE SAME IS UNDER CHALLENGE. THE LD. DR COULD NOT POINT OUT ANY OF THE EXCEPTION S AS PROVIDED ABOVE. ACCORDINGLY, THIS BEING A TAX EFFECT CASE, WE DISMISS THE APPEAL OF T HE REVENUE IN LIMINE WITHOUT GOING INTO MERITS AND AS UNADMITTED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 6. ORDER PRONOUNCED IN OPEN COURT ON 15 TH DAY OF MARCH, 2011. SD/- , (MAHAVIR SINGH) JUDIC IAL MEMBER ( *+ *+ *+ *+) )) ) DATED 15 TH DAY OF MARCH, 2011 ,- ./ 0 JD.(SR.P.S.) () 1 &2 3(2!4- COPY OF THE ORDER FORWARDED TO: 1 . $% / APPELLANT DCIT, CIRCLE-4, KOLKATA. 2 &'$% / RESPONDENT, M/S. SANNYASITHAN TEA CO. PVT. LTD., 24, R. N. MUKHERJEE ROAD, KOLKATA-700 001. 3 . ) / THE CIT(A), KOLKATA 4. ) ( )/ CIT, KOLKATA 5 . ;< & / DR, KOLKATA BENCHES, KOLKATA '2 &/ TRUE COPY, ()=/ BY ORDER, / /ASSTT. REGISTRAR .