The ITO, Ward-3(4), JAMNAGAR V. Shri Mayur Jayantilal Doshi, JAMNAGAR

ITA 235/RJT/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56662 (ITAT-RAJKOT)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 25-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: KAMLESH RATHOD
• Keywords: Tax effect
• Section: 10(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.225/RJT/2011 - 2002-03 I.T.A. NO.226/RJT/2011 - 2003-04 I.T.A. NO.235/RJT/2011 - 2004-05 I.T.A. NO.236/RJT/2011 - 2005-06 ITO, WD.3(3) VS SHRI MAYUR JAYANTILAL DOSHI JAMNAGAR DEVELOPMENT OFFICER LIC OF INDIA, ABHAY SHOPPING CENTRE, TEEN BATTI, JAMNAGAR PAN : ACXPD2421M (APPELLANT) (RESPONDENT) C.O. NOS 50&51/RJT/2011 (ARISING OUT OF ITAS NO.235 & 36/RJT/2011) (ASSESSMENT YEARS 2004-05 & 2005-06) SHRI MAYUR JAYANTILAL DOSHI VS ITO, WD.3(4) JAMNAGAR JAMNAGAR (CROSS OBJECTOR) (RESPONDENT) DATE OF HEARING : 08-09-2011 DATE OF PRONOUNCEMENT : 08-09-2011 REVENUE BY : SHRI MK SINGH ASSESSEE BY : SHRI KAMLESH RATHOD O R D E R PER BENCH ALL THE FOUR APPEAL ARE FILED BY THE REVENUE WHICH ARISE OUT OF THE ORDER OF CIT(A), JAMNAGAR FOR THE ASSESSMENT YEARS 2002-03 T O 2005-06. THE CROSS OBJECTIONS FOR ASSESSMENT YEARS 2004-05 AND 2005-06 ARE FILED BY THE ASSESSEE. SINCE ALL THE APPEALS AND THE CROSS OBJECTIONS PERT AIN TO SAME ASSESSEE, FOR THE SAKE OF CONVENIENCE, THEY WERE HEARD TOGETHER AND A RE DISPOSED OF BY THIS COMMON ORDER. ITA NO.225-226 & 235-236/RJT/2011 COS 50 & 51/RJT/2011 2 2. WE HAVE HEARD SHRI MK SINGH, THE LD.DR AND SHRI KAMLESH RATHOD, THE LD.REPRESENTATIVE FOR THE ASSESSEE. 4. THE SOLE ISSUE INVOLVED IN ALL THESE APPEALS FIL ED BY THE REVENUE PERTAINS TO DISALLOWANCE U/S 10(14) OF THE ACT. THE LD.REPR EENTATIVES OF THE PARTIES SUBMITTED THAT THE TAX EFFECT INVOLVED IN ALL THESE APPEALS ARE BELOW THE TAXABLE LIMIT RS.3 LAKHS PRESCRIBED BY THE CBDT FOR PRESENT ATION OF APPEAL BEFORE THE TRIBUNAL. WE FIND THAT UNDER SUCH CIRCUMSTANCES TH E ITAT, RAJKOT HAS DISMISSED REVENUES APPEAL IN LIMINE IN ITA NO.647/RJT/2010 D ATED 18-03-2011. THE RELEVANT FINDING IS REPRODUCED AS UNDER: 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF TH E PARTIES AND PERUSED THE RECORD. THE LD.AR OF THE ASSESSEE PLACED BEFORE US A COPIES OF BOARDS INSTRUCTIONS NO.5/2008 DATED 15-5-2008 AND NO.3/2011 (F.NO.279/MISC.142/2007-ITJ) DATED 9-2-20 11 AND POINTED OUT THAT THE BOARD HAS EXPRESSLY PROHIBITED THE DEPARTMENT FROM FILING THE APPEAL BEFORE THE TRIBUNAL IN A CAS E WHERE THE TAX EFFECT IS LESS THAN RS.3 LAKHS. THE LD.DR POINTED OUT THAT IN INSTRUCTION NO. 3/2011 (.NO.279/MISC. 142/2007-ITJ) DATED 09-02- 2011 IT HAS BEEN CLEARLY STATED AT PARAGRAPH 11 THA T THESE INSTRUCTIONS WILL APPLY ONLY IN RESPECT OF APPEALS FILED ON OR AFTER 15- 05-2008 AND THIS APPEAL IS FILED BEFORE THE INSTRUC TION IS ISSUED. THE SAID CLAUSE READS AS FOLLOWS: 11. THIS INSTRUCTION WILL APPLY TO APPEALS FILED O N OR AFTER 15 TH OF MAY 2008. HOWEVER, THE CASES WHERE APPEALS HAVE BE EN FILED BEFORE 15 TH OF MAY 2008 WILL BE GOVERNED BY THE INSTRUCTIONS O N THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 3. ON THE OTHER, THE LD.AR FILED A COMPARATIVE CHAR T OF BOTH THE INSTRUCTIONS, I.E. INSTRUCTIONS INSTRUCTIONS NO.5/2 008 DATED 15-5- 2008 AND NO.3/2011 (F.NO.279/MISC.142/2007-ITJ) DAT ED 9-2- 2011. HE SUBMITTED THAT IN INSTRUCTION DATED 15-05 -2008 SIMILAR ITA NO.225-226 & 235-236/RJT/2011 COS 50 & 51/RJT/2011 3 CLAUSE WAS ALREADY THERE. APART FROM THIS, THE BOM BAY HIGH COURT IN THE CASE OF CIT VS PITHWA ENGG WORKS 276 ITR 51 9 (BOM) HELD THAT THE CENTRAL BOARD OF DIRECT TAXES BY ITS CI RCULAR DATED MARCH 27,2000, HAS TAKEN A POLICY DECISION NOT TO F ILE REFERENCES IF THE TAX EFFECT IS LESS THAN RS.2 LAKHS. THE CIRCUL AR IS APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDE D. THE DEPARTMENT CANNOT CONTEND THAT CIRCULAR IS BINDING ONLY WITH RESPECT TO THE NEW CASES AND NOT WITH RESPECT TO TH E OLD REFERRED CASES EVEN IF THE TAX IS LESS THAN RS.2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN THE LIGHT OF THE JUDGMENT OF THE BOMBAY HIGH COURT WE FIND THAT THE INSTRUCTION DATED 09-02-2011 IS APPLICABLE TO APPEALS FILED BEF ORE ISSUANCE OF INSTRUCTION DATED 09-02-2011. 4. IN THIS VIEW OF THE MATTER, AND IN THE LIGHT OF THE JUDGMENT OF THE BOMBAY HIGH COURT CITED SUPRA, WE DISMISS THE A PPEAL FILED BY THE REVENUE AS NOT MAINTAINABLE SINCE THE TAX EFFEC TIVE INVOLVED IN THE APPEAL IS BELOW RS.3 LAKHS. 5. WE FOLLOW THE ABOVE ORDER OF ITAT AND IN THE LIG HT OF THAT THE APPEALS FILED BY THE REVENUE ARE DISMISSED IN LIMINE. 6. THE CROSS OBJECTION FILED BY THE ASSESSEE HAS NO T BEEN PRESSED AT THE TIME OF HEARING, HENCE THE SAME IS DISMISSED FOR WA NT OF PROSECUTION. 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08-09-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 08 TH SEPTEMBER, 2011 PK/- ITA NO.225-226 & 235-236/RJT/2011 COS 50 & 51/RJT/2011 4 COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A), JAMNAGAR 4. THE CIT, JAMNAGAR 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT