I.T.O Wd - 2(2),Asansol, Asansol V. Sri Nitya Gopal Maji, Burdwan

ITA 2309/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100304 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 27-08-2013
• Court: TRIBUNAL
• Keywords: Business income; Audit objection; Tax effect
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KO LKATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] ITA NO. &A.Y. (1) REVENUE/REP. BY (2) V S 3 ASSESSEE/PAN/REP. BY (4) QUANTUM INVOLVED (5) TAX EFFECT INVOLVED (6) 2309-2311/K/13 AY.04-05-06-07 ITO, WD-2(2), ASNASOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR NITYA GOPAL MAJI PAN: AELPM9866K, REP. BY NONE VILL & PO ETHORA-713359, DISTRICT BURDWAN AY 2004-05 RS.925000 AY 2005-06 RS.1734000 AY 2006-07 RS.1015000 AY 2004-05 RS. 314500 AY 2005-06 RS.589560 AY 2006-07 RS.345100 82/KOL/2015 AY 2010-11 CO 13/KOL/2015 DCIT,CIR-40, KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR NAVEEN DUGAR NAVEEN DUGAR, PAN: ADPPD6977M REP. BY SHRI S. M. SURANA, ADVOCATE 26, RAJA BASANTA ROY ROAD, KOL-26. DCIT, CIR-40, KOLKATA. RS.2348126 RS.772553 2037/KOL/2013 AY 2008-09 ITO, WD-2(2), ASANSOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. MA TARA TRANSPORT CO., PAN: AAMFM3326M, REP. BY NONE RADHANAGAR ROAD, PO BURNPUR-713325 RS.1897263 RS.645069 IT(SS)A 54/K/13 AY 2010-11 DCIT, CC-XIX, KOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR DEEPAK KUMAR AGARWAL, PAN: ABSPA2276K, REP. BY NONE A1/3, SECTOR-2B, ARM STRONG AVENUE, BIDHAN NAGAR, DURGAPUR-713212 RS.1689829 RS.574541 1200/KOL/2013 AY 2008-09 DCIT, CC-VII, KOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. JAISHREE COMMOTRADE PVT. LTD. PAN: AAACJ7907N, REP. BY NONE 10A, HOSPITAL STREET, KOLKATA-72. RS.2470169 RS.839857 223/KOL/2015 AY 2010-11 ACIT, CIR-47, KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. GIRIDHARI LAL CHOWDHURY(HUF) PAN: AACHG8592F, REP. BY NONE 4, STATION ROAD, LILUAH, HOWRAH- 711204 RS.3750634 RS.825139 BEING DIFFERENCE IN SHORT TERM CAPITAL GAIN AND BUSINESS INCOME 403/KOL/2015 AY 2010-11 ITO, WD-40(1), KOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR SHRI SATYA NARAYAN JAJU, PAN: ACVPJ3581C, REP. BY NONE 1, ABDUL HAMID ST., 6 TH FLOOR, KOL-69 RS.1586487 RS.537405 263/KOL/2015 AY 2010-11 ACIT, CIR-3, ASANSOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. BHAWANI CEMENT (P) LTD. PAN: AADCP0592J, REP. BY NONE JAM URIA HAT, JAMURIA-713362. RS.2307176 RS.784439 280/KOL/2015 AY 2009-10 DCIT, CIR-1, DURGAPUR REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR SHRI DIPEN MUKHERJEE, PAN: ADRPM1529J, REP. BY NONE PROP. M/S. MUKHERJEE CONSTRUCTION, 3E/3, SUKANTA PALLY WEST, DHANDABAG, DURGAPUR-713203. RS.1881558 RS.639729 1954/KOL/2013 AY 2008-09 ITO, WD-2(1), ASANSOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. JOHN & CO. PAN: AACFJ8520C, REP. BY NONE UPPER CHELIDANGA, ASANSOL-713304 RS.1504101 RS.511394 2002/KOL/2014 AY 2007-08 ITO, WD-12(1), KOL. REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. BONANJA TRADING CO. PVT. LTD. PAN: AABCB0175D, REP. BY NONE 7/1A, SUNNY PARK, KOLKATA-700019. RS.2500000 RS.850000 1343/KOL/2013 AY 2006-07 ITO, WD-1(2), KOL. REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. KEDWIN EXPO LTD. PAN: AABCK1036G, REP. BY NONE 16, GANESH CH. AVENUE, 8 TH FLOOR, KOLKATA-700013 RS.2935944 RS.998220 1689/KOL/2013 AY 2009-10 ITO, WD-1(2), ASANSOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR SUKANTA BHATTACHARJEE, PAN: AHZPB2901R, REP. BY NONE KALYANGRAM, PO HCL, DIST. BURDWAN- 713364 RS.2337771 RS.794842 1706/KOL/2014 AY 2010-11 DCIT,CIR-2 MIDNAPORE REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR SHRI DIPAK KUMAR GHORAI, PAN: ADLPG7954R, REP. BY NONE MOGLANI CHOWK, DHANESWAR, PUR PINGLA, DIST. PASCHIM MEDINIPUR- 721140 RS.2341050 RS.795957 2473/KOL/2013 ITO, WD-8(3), KOLKATA SHRI ANIL KR. AGARWAL RS.969576 RS.329655 2 2 AY 2007-08 REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR PAN: ACZPA2425Q, REP. BY NONE 51, EZRA STREET, 2 ND FLOOR, KOL-1 638/KOL/2014 AY 2010-11 ACIT, CIR-31, KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. RBA FINANCE & INV. COMPANY PAN: AAGFR0822H, REP. BY SHRI L. K. JALAN, ADVOCATE 2/6, SARAT BOSE ROAD, KOLKATA-700020 RS.448321 RS.138530 1416/KOL/2013 AY 2007-08 ACIT, CIR-43, KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. BEEKAY BROS, PAN: AADFB4794M, REP. BY NONE 48D, MUKTARAM BABU ST., KOL-7 2836446 RS.917381 1689/KOL/2014 AY 2006-07 ITO, WD-36(3), KOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR SHABBIER HUSSAIN HASSANALLY PAN: ABIPH5372D, REP. BY NONE 10, OLD CHINA BAZAR ST., KOL-1. U/S. 271(1)(C) RS.878900 1181/KOL/2013 AY 2009-10 ITO, WD-3(2), ASANSOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR SRI RAGHUNATH PRASAD GURUNANAK COMPLEX, PAN: AFAPP5401 REP. BY NONE GURUNANAK COMPLEX RAMBANDHU TALAW, G.T. ROAD (EAST), ASANSOL, BURDWAN-713303 RS.2278500 RS.774690 2060/KOL/2014 AY 2006-07 DCIT, CIR-11, KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. MACHINO TECHNO (SALES) P. LTD. PAN: AACCM2561R REP. BY SHRI S.M. SURANA, ADVOCATE 8A, JINDAL HOUSE, ALIPORE, KOL-27 RS.136403 RS.46363 1238/KOL/2013 AY 2008-09 ITO, WD-47(3), KOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR SHRI ALOK KUNDU, PAN:AGDPK1716G REP. BY NONE 21, KALI BANERJEE LANE, HOWRAH- 711101 RS.1650000 561000 577/KOL/2015 AY 2006-07 DCIT, CIR-1, SILIGURI REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR DARPAN PUBLICATION (P) LTD. PAN: AABCD2349H, REP. BY NONE HILL CART ROAD, SILIGURI-734001 U/S. 271(1)(C) RS.592658 711/KOL/2015 AY 2012-13 ITO, WD-2(3), ALIPURDUAR REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR NIRMAL KANTI DAS PAN: ADGPD8316F, REP. BY NONE C/O MANTOSH DEB, NEW TOWN, ALIPURDUAR-736122 U/S. 271(1)(C) RS.547428 1137/KOL/2013 AY 2007-08 ACIT, CIR, SURI, BIRBHUM REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. HIRALAL JASKARAN OIL MILL PAN: AABHF9847F, REP. BY NONE F.C.I ROAD, SAINTHIA, BIRBHUM, PIN- 731234 RS.1177065 RS.400202 2031/KOL/2013 AY 1998-99 ITO, WD-30(3), KOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR SMT. SANGEETA KEDIA PAN:AFCPK4489G, REP. BY NONE 8, QEENS PARK, KOLKATA-700019 RS.2100000 RS.714000 2824/KOL/2013 AY 2006-07 ITO, WD-3(4), KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. NARAYANI STEELS PVT. LTD. PAN: AAACN8563G, REP. BY NONE C/O S. JAYKISHAN, SUIT NO. 2D,2E&2F, 12, HO-CHI-MINH SARANI, KOL-71. RS.1892537 RS.643462 2830/KOL/2013 AY 2009-10 ACIT, CIR-31, KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR VIRENDRA SINGHVI, PAN:AJWPS2093N REP. BY NONE 505, VASUNDHARA, SARAT BOSE ROAD, KOLKATA-700020. RS.1427579 RS.485376 232/KOL/2014 AY 2009-10 DCIT, CIR-3, KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. UNION ROADWAYS LTD. PAN: AAACU3732C, REP. BY S/SHRI V.N.PUROHIT & HARSH VARDHAN BHARDWAJ, FCA P-9, NEW CIT ROAD, KOLKATA-73. RS1200000 RS.407880 61-62/KOL/2015 AY 2009-10 & 2010-11 ITO, WD-12(3), KOL REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. RATNABALI COMMODITIES PVT. LTD. PAN: AAACU3187F, REP. BY NONE A-7&8, 4 TH FLOOR, FMC FORTUNA, 234/3A, AJC BOSE RD., KOL-20. AY 2009-10 RS.1946074 AY 2010-11 RS.2318719 AY 2009-10 RS.661665 AY 2010-11 RS.788364 58/KOL/2015 AY 2010-11 DCIT, CIR-11, KOLKATA REP. BY SH. SUDIPTA GUHA, JCIT, SR. DR M/S. PEERLESS HOSPITEX HOSPITAL & RESEARCH CENTRE LTD. PAN: AABCP7225L, REP. BY NONE 360 PANCHASAYAR, KOL-700084 RS.2663508 RS.905592 3 3 DATE OF HEARING: 30.12.2015 DATE OF PRONOUNCEMENT: 30.12.2015 ORDER PER SHRI MAHAVIR SINGH, JM: THESE APPEALS OF THE REVENUE ARISE OUT OF THE VARIO US ORDERS OF THE LEARNED CIT(A) AGAINST THE ORDERS OF ASSESSMENT FRAMED U/S 147 / 1 43(3) / 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET, IT IS SEEN THAT THE TAX EFFECT O N THE DISPUTED ADDITIONS BEFORE US IS LESS THAN RS. 10 LACS. AS THE TAX EFFECT IN ALL THESE APPEALS ARE LESS THAN RS 10 LACS (AS MENTIONED IN COLUMN NO. 6), THESE APPEALS ARE TAKEN UP TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. AFTER PERUSING THE MATERIALS AVAILABLE ON RECOR D, IN ALL THESE APPEALS, IT IS SEEN FROM THE RECORDS THAT THE TOTAL TAX EFFECT IN EACH OF THE AP PEALS, ON THE ADDITIONS DISPUTED BEFORE US IS BELOW THE TAX EFFECT LIMIT PRESCRIBED BY CBDT VIDE CIRCULAR NO. 21 / 2015 DATED 10.12.2015 FOR PREFERRING APPEALS BEFORE TRIBUNAL BY THE REVENUE. IT WILL BE PERTINENT TO REPRODUCE THE RELEVANT PORTION OF THE SAID CIRCULAR NO. 21 / 2015 DATED 10 .12.2015:- 3. HENCEFORTH, APPEALS / SLPS SHALL NOT BE FILED I N CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER:- S.NO. APPEALS IN INCOME TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 2 BEFORE HIGH COURT 20,00,000/- 3 BEFORE SUPREME COURT 25,00,000/- IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUC H TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEA L IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS DISPUTED ISSUES). HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UN DER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EF FECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NO TIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM O F PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EF FECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT Y EAR , APPEAL, CAN BE FILED IN RESPECT OF SUCH 4 4 ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHA LL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONE TARY LIMIT SPECIFIED IN PARA 3. IN OTHER WORDS, HENCEFORTH, APPEALS CAN BE FILED ONLY WITH REFERENC E TO THE TAX EFFECT IN THE RELEVANT ASSESSMENT YEAR. HOWEVER, IN CASE OF A COMPOSITE ORDER OF AN Y HIGH COURT OR APPELLATE AUTHORITY, WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON I SSUES IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESS MENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN TH E 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 TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED. IN CASE WHERE A COMPOSITE ORDER / JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY. 8. ADVERSE JUDGEMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LES S THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR C IRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN A SSETS / BANK ACCOUNTS. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPE ALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN / NOT PRESSED. APPEALS BEFO RE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4. WE FIND THAT INTENTION BEHIND THE CIRCULAR NO.21 /2015 DATED 10-12-2015 NEEDS TO BE UNDERSTOOD IN THE FOLLOWING PERSPECTIVE:- BY PASSAGE OF TIME, THE MONEY VALUE HAS GONE DOWN, THE COST OF LITIGATION EXPENSES HAS GONE UP, NUMBER OF ASSESSES ON THE FILES OF THE DE PARTMENT HAVE BEEN INCREASED AND CONSEQUENTLY, THE BURDEN ON THE DEPARTMENT IS ALSO INCREASED TO A TREMENDOUS EXTENT. THE CORRIDORS OF THE SUPERIOR COURTS ARE CHOKED WITH HU GE PENDENCY OF CASES. IN THIS VIEW OF THE MATTER, THE CBDT HAS RIGHTLY TAKEN A DECISIO N TO REVISE THE MONETARY LIMITS IN TUNE WITH THE PRESENT VALUE OF MONEY AND WITH A VIEW TO REDUCE THE LITIGATION AND OFFERING RELIEF TO SMALL TAX PAYERS. THIS IS ALSO IN VIEW O F THE FACT THAT TIME AND ENERGY OF THE DEPARTMENT COULD BE USED MORE PRODUCTIVELY AND EFFI CIENTLY TO CATCH HOLD OF BIG FISHES, WHO IN TURN WOULD CONTRIBUTE MORE TO THE DEVELOPMEN T OF THE COUNTRY. 5. ON PERUSAL OF THE CIRCULAR NO. 21 / 2015 DATED 1 0.12.2015 AND THE MATERIALS AVAILABLE ON RECORD, LD. DR COULD NOT POINT OUT WHETHER THESE CA SES FALL UNDER ANY OF THE EXCEPTION AS PROVIDED IN THE CIRCULAR DESPITE SPECIFIC OPPORTUNI TY WAS GIVEN, DOES NOT FALL UNDER ANY OF THE EXCEPTIONS CONTEMPLATED IN THE SAID CIRCULAR, AS TH ESE ARE COVERED. WE ALSO FIND THAT THE CIRCULAR MAKES IT VERY CLEAR THAT THE REVISED MONET ARY LIMITS SHALL APPLY RETROSPECTIVELY TO 5 5 PENDING APPEALS ALSO. WE FIND THAT THE CIRCULAR IS BINDING ON THE TAX AUTHORITIES. THIS POSITION HAS BEEN CONFIRMED BY THE HONBLE APEX COURT IN THE CASE OF COMMISSIONER OF C USTOMS VS INDIAN OIL CORPORATION LTD REPORTED IN 267 ITR 272 (SC) WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULARS AND LAID DOWN 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 CONTRARY TO THE TERMS OF THE STATUTE . HENCE, WE HOLD THAT THE APPEAL(S) OF THE REVENUE DE SERVE TO BE DISMISSED IN TERMS OF LOW TAX EFFECT VIDE CIRCULAR NO.21 / 2015 DATED 10.12.2015. ACCORDINGLY, THESE BEING A LOW TAX EFFECT CASE, WE DISMISS ALL THE APPEALS OF REVENUE IN LIMI NE, AS UNADMITTED, WITHOUT GOING INTO THE MERITS OF THE CASE. 6. THE C.O RAISED BY ASSESSEE IN CO NO.13/KOL/2015 WAS NOT PRESSED. HENCE, THE SAME IS DISMISSED AS NOT PRESSED. 7. IN THE RESULT, ALL THE APPEALS OF THE REVENUE AR E DISMISSED INLIMINE AND THAT OF THE CO OF THE ASSESSEE IS ALSO DISMISSED ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30TH DECEMBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2 RESPONDENT 3. THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .