The Income-Tax officer, Ward-1(4), V. M/s. R. B. Rathod & Co.,

ITA 264/RJT/2006

• Counselvise Citation: 26424914 RSA 2006
• Duration Of Justice: 5 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-09-2011
• Assessment Year: 1993-1994
• Appeal Filed On: 14-06-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: J C RANPURA
• Keywords: Tax effect

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.264 & 265/RJT/2006 (ASSESSMENT YEARS 1993-94 & 1994-95) ITO, WD.1(4) VS M/S RB RATHOD & CO RAJKOT C/O HOTEL THE JEWEL LIMDA CHOWK, RAJKOT PAN : AAHFR9294A (APPELLANT) (RESPONDENT) DATE OF HEARING : 07-09-2011 DATE OF PRONOUNCEMENT : 09-09-2011 APPELLANT BY : SHRI MK SINGH RESPONDENT BY: SHRI JC RANPURA O R D E R PER AL GEHLOT, AM THESE APPEALS OF THE REVENUE ARE DIRECTED AGAINST THE ORDER OF CIT(A)-I, RAJKOT DATED 22-03-2006 PERTAINING TO ASS ESSMENT YEARS 1993-94 AND 1994-95. 2. GROUND NO.1 IS IN RESPECT OF PENALTY U/S 271(1)( C) OF RS.32,000 FOR ASSESSMENT YEAR 1993-94 AND RS.53,764 FOR ASSESSMEN T YEAR 1994-95. 3. THESE APPEALS FILED BY THE REVENUE ON 14-06-2006 AND FIRST TIME FIXED FOR HEARING ON 27-07-2006. THESE APPEALS WER E HEARD ON 29-08- 2006 AND KEPT FOR ORDERS. THESE APPEALS WERE AGAIN FIXED ON 15-07-2011 FOR HEARING DATED 05-09-2011. ON 05-09-2011 REGIST RY PUT A NOTE THAT THESE APPEALS WERE HEARD ON 29-08-2006 BY THE RAJKO T BENCH CONSTITUTED ITA NO.264 & 265/RJT/2010 2 BY SHRI DT GARASIA (JM) AND SHRI SANJAY ARORA (AM). THE DRAFT ORDER IS PLACED ON APPEAL FILES BUT THE BENCH HAS NEITHER PA SSED THE ORDER NOR RELEASED THE MATTER. THESE APPEALS WERE RELEASED T O REGISTRY WITHOUT ANY NOTE OR ORDER. ON 05-09-2011 THE BENCH ASKED BOTH THE PARTIES TO SUBMIT FACTUAL POSITION OF THE MATTER AS PER THEIR RECORD WHETHER THEY RECEIVED ANY ORDER OR APPEALS ARE STILL PENDING FOR DISPOSAL. T HE ASSESSEE, VIDE HIS LETTER DATED 05-09-2011 AND REVENUE VIDE THEIR LETT ER DATED 06-09-2011 SUBMITTED THAT THESE APPEALS ARE STILL PENDING AND THEY HAVE NOT RECEIVED ANY ORDER. IN THE LIGHT OF THE FACT BOTH THE APPEA LS HAVE BEEN HEARD. THE LD.DR SUBMITTED THAT THE TAX EFFECT IN BOTH THE APP EALS ARE LESS THAN RS. 3 LAKHS. 4. AFTER HEARING THE LDE.DR WE FIND THAT UNDER SUCH CIRCUMSTANCES THE ITAT, RAJKOT HAS DISMISSED REVENUES APPEAL IN LIMI NE IN ITA NO.647/RJT/2010 DATED 18-03-2011. THE RELEVANT FINDING IS REPRODUC ED 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. ITA NO.264 & 265/RJT/2010 3 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 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 APPEAL FILED BY THE REVENUE IS DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE OPEN COURT ON 09-09-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 09 TH SEPTEMBER, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-I, RAJKOT 4. THE CIT-I, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT