DDIT(IT)1(1),Kolkata., Kolkata V. Cathay Pacific Airways Limited., Kolkata

ITA 266/KOL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5015 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 17-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2013
• Court: TRIBUNAL
• Department Lawyers: C P BHATIA JCIT LD
• Assessee Lawyers: MRS SUSHMITA BASU FCA SHRI A
• Keywords: Audit objection; Tax effect
• Section: 143(3)

Judgement Text

ITA NO.266/KOL/2013-A-AM M/S.CATHAY PACIFIC AIRWAYS LIMITED . T.E 1 IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, K OLKATA BEFORE : SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 266/KOL/2013 A.Y 2009-10 DDIT (IT)-1(1), KOLKATA VS. M/S. CATHAY PACIFI C AIRWAYS LIMITED PAN: AABCC5644E (APPELLANT) (RESPONDENT) FOR THE APPELLANT/DEPARTMENT: SHRI C.P BHATIA , JCIT, LD.SR.DR FOR THE RESPONDENT/ASSESSEE: MRS. SUSHMITA BASU, FCA SHRI AMIT PATNI, FCA , LD.ARS DATE OF HEARING: 17-03-2016 DATE OF PRONOUNCEMENT: 17-03-2 016 ORDER SHRI M.BALAGANESH, AM : THIS APPEAL OF THE REVENUE ARISES OUT OF THE ORDER OF THE LEARNED CIT(A)-VI, KOLKATA IN APPEAL NO. 35/CIT(A)-VI/ADIT(IT)-1(1)/1 1-12/KOL DATED 22-11-2012 FOR THE ASSESSMENT YEAR 2009-10 AGAINST THE ORDER OF ASSESSMENT FRAMED U/S 143(3) R.W.S 144C (3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT). 2. THE BRIEF FACTS OF THIS CASE ARE THAT THE LD.AO MADE AN ADDITION OF RS.36,88,414/- TO THE TOTAL INCOME ON ACCOUNT OF CONTRACTUAL RECEI PTS IN TERMS OF SECTION 44BBA OF THE ACT BEING WORKED OUT AT 5% OF CONTRACTUAL RECEIPTS ( 5% OF RS. 7,37,68,283/-). FURTHER INTEREST INCOME OF RS. 6,77,823/- WAS ALSO ADDED BY THE LD.AO. THE LD. AR SUBMITTED THAT OUT OF SAID INTEREST INCOME A SUM OF RS.4,89,0 55/- WAS SUO MOTU OFFERED TO TAX BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEE DINGS. THE ASSESSEE COMPANY PREFERRED APPEAL BEFORE THE LD. CIT(A), WHO DIRECT ED THE LD.AO TO RE-EXAMINE THE ITA NO.266/KOL/2013-A-AM M/S.CATHAY PACIFIC AIRWAYS LIMITED . T.E 2 MATTER AND THEN TO PASS ORDER ACCORDINGLY. AGAINST THE SAID ORDER OF THE LD.CIT(A), THE REVENUE IS IN APPEAL BEFORE US BY RAISING THE FOLL OWING GROUNDS:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD.CIT(A) FELL INTO ERROR IN DELETING THE ADDITION OF RS.1,88,768/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INT EREST INCOME RECEIVED FROM THE HSBC BANK, MUMBAI MAIN OFFICE AND THE APPE LLATE ORDER WAS PASSED WITHOUT FOLLOWING THE PROVISIONS OF SECTION 250(4) OF THE INCOME TAX ACT, 1961. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD.CIT(A) FELL INTO ERROR IN DELETING THE ADDITION OF RS.36,73,696/- MADE BY THE ASSESSING OFFICER AT THE RATE OF 5% OF RS. 7,34 , 73,934/ - UNDER SECTION 44BBA ON ACCOUNT OF UNDISCLOSED RECEIPTS FROM 18 DI FFERENT PARTIES AND THE APPELLATE ORDER WAS PASSED WITHOUT FOLLOWING THE PR OVISIONS OF SECTION 250(4) OF THE INCOME TAX ACT, 1961. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) FELL INTO ERROR IN DELETING THE ADDITION OF RS.2,94,349/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INC OME RECEIVED BY THE ASSESSEE FROM CONCORDE AIR LOGISTICS LTD. AND THE A PPELLATE ORDER WAS PASSED WITHOUT FOLLOWING THE PROVISIONS OF SECTION 250(4) OF THE INCOME TAX ACT, 1961. 3. THE LD.AO HAD GIVEN EFFECT ON 09-07-2013 PURSU ANT TO THE ORDER OF THE LD. CIT(A), WHEREIN AFTER RE-EXAMINATION OF UN-RECONCIL ED CONTRACTUAL RECEIPTS, THE DISALLOWANCE OF RS.36,33,402/- WAS MADE. BY THIS PR OCESS, THE INCOME UNDER DISPUTE BEFORE US ON ACCOUNT OF 5% OF CONTRACTUAL RECEIPTS IS OF RS.55,012/- ( RS.36,88,414 RS.36,33,402) AND INTEREST INCOME OF RS.1,88,768/-. HENCE, THE TOTAL DISPUTED ADDITION BEFORE US IS OF RS.2,43,780/- AND TAX EFFECT THEREO N IS ONLY RS.1,02,948/- 4. IT IS SEEN FROM THE PERUSAL OF THE RECORDS THAT THE TAX EFFECT (RS.1,02,948/-) ON THE DISPUTED ADDITIONS BEFORE US IS ADMITTEDLY BELOW T HE TAX EFFECT LIMIT PRESCRIBED BY CBDT VIDE CIRCULAR NO. 21 / 2015 DATED 10.12.2015 FOR PREFERRING APPEAL(S) BEFORE ITA NO.266/KOL/2013-A-AM M/S.CATHAY PACIFIC AIRWAYS LIMITED . T.E 3 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 IN 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 B EEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME I N RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREI NAFTER REFERRED TO AS DISPUTED ISSUES). HOWEVER, THE TAX WILL NOT INCLUDE ANY I NTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOM E, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CAS E OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDU CED 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 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, CAN 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 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 ON LY WITH REFERENCE TO THE TAX EFFECT IN THE RELEVANT ASSESSMENT YEAR. HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY, WHICH INVOLV ES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S), I F IT IS DECIDED TO FILE APPEAL IN ITA NO.266/KOL/2013-A-AM M/S.CATHAY PACIFIC AIRWAYS LIMITED . T.E 4 RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEED S THE MONETARY LIMIT PRESCRIBED. IN CASE WHERE A COMPOSITE ORDER / JUDGEMENT INVOLVE S 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 LESS 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. PEN DING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRA WN / NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE IN STRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4.1 WE FIND THAT INTENTION BEHIND THE CIRCULAR NO.2 1/2015 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 FI LES OF THE DEPARTMENT 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 HUGE PENDENCY OF CASES. IN THIS VIEW OF THE MATTER, THE CBDT HAS RIGHTLY TAKEN A DECISION TO REVISE THE MONETAR Y LIMITS IN TUNE WITH THE PRESENT VALUE OF MONEY AND WITH A VIEW TO REDUCE TH E 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 PRODUC TIVELY AND EFFICIENTLY TO ITA NO.266/KOL/2013-A-AM M/S.CATHAY PACIFIC AIRWAYS LIMITED . T.E 5 CATCH HOLD OF BIG FISHES, WHO IN TURN WOULD CONTRIB UTE MORE TO THE DEVELOPMENT OF THE COUNTRY. 4.2. ON PERUSAL OF THE CIRCULAR NO. 21 / 2015 DATED 10.12.2015 AND THE MATERIALS AVAILABLE ON RECORD, WE COULD NOT SEE WHETHER THE I MPUGNED CASE FALLS UNDER ANY OF THE EXCEPTIONS CONTEMPLATED IN THE SAID CIRCULAR. WE A LSO FIND THAT THE CIRCULAR MAKES IT VERY CLEAR THAT THE REVISED MONETARY LIMITS SHALL A PPLY RETROSPECTIVELY TO PENDING APPEALS ALSO. WE FIND THAT THE CIRCULAR IS BINDING ON THE T AX 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 WI TH 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 ALLOW ED 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 DESERVE TO BE DISMISSED IN TERMS OF LOW TAX EFFECT VIDE CIRCULAR NO.21 / 2015 DATED 10.12.2015. ACCORDINGLY, THIS BEING A LOW TAX EFFE CT CASE, WE DISMISS THE APPEAL OF THE REVENUE IN LIMINE , AS UNADMITTED, WITHOUT GOING IN TO THE MERITS OF THE CASE. THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17-03-2016. SD/- SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) ( M.BALAGANESH, ACCOUNTANT MEMBER) DATE : 17-03-2016 ITA NO.266/KOL/2013-A-AM M/S.CATHAY PACIFIC AIRWAYS LIMITED . T.E 6 1. THE APPELLANT/DEPARTMENT: THE DDIT(IT) 1(1) KOL KATA ROOM NO. 210, 2 ND FL., AAYKAR BHAWAN POORVA, 110 SHANTI PALLY, KOLKATA-107 . 2 THE RESPONDENT- M/S. CATHAY PACIFIC AIRWAYS LIMI TED C/O PRICE WATER HOUSE COOPERS LTD PLOT Y-14, BLOCK EP SALT LAKE, KOLKATA- 91. 3 /THE CIT, 4.THE CIT(A ) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP/SPS COPY OF THE ORDER FORWARDED TO: