DCIT International Taxation 2(2), CHENNAI V. Unitex Logistics India Pvt Ltd., CHENNAI

ITA 2688/CHNY/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0797 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 08-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAYA PRABHA ADDITIONAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Tax effect
• Section: 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ ITA NO. 2688 /CHNY/201 7 / ASSESSMENT YEAR: 20 0 9 - 20 10 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 2 (2) , INTERNATIONAL TAXAT ION, ROOM NO.410, TOWER 1, BSNL BUILDING, GREAMS ROAD, CHENNAI 600 006. VS. M/S. UNITEX LOGISTICS INDIA PRIVATE LIMITED, CASA BLANCA, 11 CASA MAJOR ROAD, EGMORE, CHENNAI 600 008. [PAN: AAACU 9669A ] ( /APPELLANT) ( /RESPONDEN T) / APPELLANT BY : MS. VIJAYA PRABHA, ADDITIONAL CIT /RESPONDENT BY : MR. S. SRIDHAR, ADVOCATE / DATE OF HEARING : 11.06.2020 / DATE OF PRONOUNCEMENT : 11.06.2020 / O R D E R PER SHRI GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE CALL INTO QUESTION CORRECTNESS OF THE RELIEF GRANTED TO THE TAXPAYERS BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 6 , CHENNAI AND, MOST IMPORTANTLY, THE TAX EFFECT INVOLV ED IN THIS APPEAL DOES NOT EXCEED RS.50,00,000/ - . 2. MS. VIJAYA PRABHA, ADDITIONAL CIT REPRESENTED ON BEHALF OF THE REVENUE AND MR. S. SRIDHAR, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. ITA NO .2688/ CHNY/2017 : - 2 - : 3. VIDE CBDT CIRCULAR NO.17/2019 IN F.NO.279/MISC.142/2007 - ITJ(PT) DATED 8TH AUGUST, 2019, THE INCOME TAX DEPARTMENT HAS FURTHER LIBERALIZED ITS POLICY FOR NOT FILING APPEALS AGAINST THE DECISIONS OF THE APPELLATE AUTHORITIES IN FAVOUR OF THE TAXPAYERS, WHEREIN TAX INVOLVED IS BELOW CERTAIN THRESHOLD LIMITS, AND ANNOUNCED ITS POLICY DECISION NOT TO FILE, OR PRESS, THE APPEALS, BEFORE THIS TRIBUNAL, AGAINST THE APPELLATE ORDERS FAVOURABLE TO THE ASSESSEE IN THE CASES IN WHICH OVERALL TAX EFFECT, EXCLUDING INTEREST EXCEPT WHEN INTEREST ITSELF IS IN DISPUTE, IS RS . 5 0,00,000 OR LESS. 4. IN VIEW OF THE ABOVE FACTUAL BACKGROUND AND THE CONCESSION BY THIS CBDT CIRCULAR, THIS APPEAL MUST BE DISMISSED AS WITHDRAWN. 5. THIS CIRCULAR, ONLY ENHANCES THE MONETARY LIMITS AND GIVES FURTHER RELAXATION. THE OLD CIRCULAR, BEY OND ANY DISPUTE OR CONTROVERSY, CATEGORICALLY APPLIED TO THE PENDING APPEALS AS ON THE DATE OF ISSUANCE OF CIRCULAR. 6. THE CIRCULAR DATED 8 TH AUGUST 2019 IS NOT A STANDALONE CIRCULAR. IT IS TO BE READ IN CONJUNCTION WITH THE CBDT CIRCULAR NO. 3/2018 ( AND SUBSEQUENT AMENDMENT THERETO), AND ALL IT DOES IS TO REPLACE PARAGRAPH NOS. 3 AND 5 OF THE SAID CIRCULAR. THIS IS EVIDENT FROM THE FOLLOWING EXTRACTS FROM THE CIRCULAR DATED 8 TH AUGUST 2019: 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATION, IT H AS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME - TAX CASES BE ENHANCED FURTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY, THE TABLE FOR MONETARY LIMITS SPECIFIED IN PARA 3 OF THE CIRCULAR S HALL READ AS FOLLOWS: ITA NO .2688/ CHNY/2017 : - 3 - : S.NO. APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (RS.) 1 BEFORE APPELLATE TRIBUNAL 50,00,000 2 BEFORE HIGH COURT 1,00,00,000 3 BEFORE SUPREME COURT 2,00,00,000 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FILING OF APPE ALS IN SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGHER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS - A - VIS WHERE COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY THE FOLLOWING PARA: 5. THE ASS ESSING OFFICER SHALL CALCULATE THE TAX EFFECT 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 YEAR, APPEAL CAN BE FIL ED IN RESPECT OF SUCH 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 SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA - 3. FURTHER, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR NO APPEAL SHALL BE FILED IN RESPE CT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY 4. THE SAID MODIFICATI ONS SHALL COME INTO EFFECT FROM THE DATE OF ISSUE OF THIS CIRCULAR. 7 . CLEARLY, ALL OTHER PORTIONS OF THE CIRCULAR NO.3 OF 2018 (SUPRA) HAVE REMAINED INTACT. THE PORTION WHICH HAS REMAINED INTACT INCLUDES PARAGRAPH 13 OF THE AFORESAID CIRCULAR WHICH IS AS FOLLOWS: 13. THIS CIRCULAR WILL APPLY TO SLPS/ APPEALS/ CROSS OBJECTIONS/ REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPEC IFIED TAX LIMITS IN PARE 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. 8 . THE HONBLE SUPREME COURT IN THE CASE OF THE COMMISSIONER OF INCOME TAX - 5, NEW DELHI VS. KESHAV POWER LTD., IN SLP NO.21497/2019 DATED 16.08.2019 REPORTED IN 2019(8)TMI 811(SC) HAS ALSO APPLIED THE CIRCULAR NO.17/2019 DATED 08.08.2019 HAS DISMISSED THE APPEAL HOLDING AS FOLLOWS: ITA NO .2688/ CHNY/2017 : - 4 - : SINCE THE TAX EFFECT INVOLVED IN THE MATTER IS LESS THAN RS.2/ - CRORES, GOING BY THE LATEST CIRCULAR ISSUED BY THE CBDT, WE SEE NO REASON TO INTERFERE IN THIS MATTER. THE SPECIAL LEAVE PETITION IS DISMISSED, LEAVING ALL THE QUESTIONS OF LAW OPEN. 9 . LEARNED COMMISSIONER (DR) SUBMITS LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIFICATIONS, AND TO SEEK RECALL THE DISMISSAL OF APPEAL AND RESTORATION OF THE APPEAL IN THE CASES (I) IN WHICH IT CAN BE DEMONSTRATED THAT THE APPEAL IS COVERED BY TH E EXCEPTIONS. THE DEPARTMENTAL REPRESENTATIVE PLEADED BEFORE US THAT LIBERTY MAY BE GRANTED TO THE ASSESSING OFFICER TO EXAMINE THE PRESENT CASE I NDEPENDENTLY. NONE OPPOSES THIS PRAYER; WE ACCEPT THE SAME. WE M AKE IT CLEAR THAT THE APPELLANT SHALL BE A T LIBERTY TO POINT OUT THE CASE SO SUMMARILY DISMISSED, EITHER OWING TO WRONG COMPUTATION OF TA X EFFECT OR OWNING TO SUCH CASE BEING COVERED BY THE PERMISSIBLE EXCEPTIONS - OR FOR ANY OTHER REASON, AND WE WILL TAKE APPROPRIATE REMEDIAL STEPS IN THIS REGARD. UNDER THESE CIRCUMSTANCES, WE FIND THAT THERE IS MERITS IN THE SUBMISSIONS OF THE DEPARTMENTAL REPRESENTATIVE. WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER IS AT LIBERTY TO EXAMINE THE PAYMENTS MADE TO NON - RESIDENTS , AS THE MATERIALS ARE CALLED FOR AND TO ITA NO .2688/ CHNY/2017 : - 5 - : EXAMINE THE PAYMENTS MADE IN THE NATURE OF REIMBURSEMENT OF FREIGHT CHARGES. 10 . IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX - 5,NEW DELHI VS. KESHAV POWER LTD., REFERRED TO SUPRA AND IN THE LIGHT OF THE ABOVE DISCUSSIONS, THE APPEAL FILED BY THE REVENUE IS FOUND TO BE NON - MAINTAINABLE. 1 1 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 11 TH JUNE , 2020 IN CHENNAI. SD/ - ( ) ( RAMIT KOCHAR) / ACCOUN TANT MEMBER SD/ - ( ) (GEORGE MATHAN) / JUDICIAL MEMBER / CHENNAI, / DATED: 11 TH JUNE, 2 020. IA , SR. P.S / COPY TO: 1. / APPELLANT 2. / RESPONDENT 3. ( ) / CIT(A) 4. / CIT 5. / DR 6. / GF