DCIT, Faridabad V. M/s. SRS Finance Ltd., Faridabad

ITA 2768/DEL/2014

• Counselvise Citation: 276820114 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 05-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: TARUN KUMAR S; ABHISHEK ANAND
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.2768/DEL/2014 ASSESSMENT YEAR : 2009-10 DCIT, CENTRAL CIRCLE-II, FARIDABAD. VS. SRS FINANCE LTD., E-18, NEHRU GROUND, FARIDABAD. PAN: AAICS7755D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ABHISHEK ANAND & SHRI TARUN KUMAR, ADVOCATES DEPARTMENT BY : SHRI RAVI JAIN, CIT, DR DATE OF HEARING : 17.12.2015 DATE OF PRONOUNCEMENT : 17.12.2015 ORDER PER DIVA SINGH, JM: THE PRESENT APPEAL FILED BY THE REVENUE IS ARISING OUT OF ORDER DATED 17.1.2014 OF CIT(A)-2, FARIDABAD PERTAINING T O 2009-10 ASSESSMENT YEAR. THE APPEAL HAS BEEN LISTED BY THE REGISTRY IN VIEW OF THE FACT THAT THE TAX EFFECT IS LESS THAN RS.10 LAC. WE FIND THAT IN THE PRESENT APPEAL THE REVENUE IS AGGRIEVED BY THE DELETION OF RS.30,00,000/- ODD. BEFORE WE PROCEED TO DELIBERATE ON THE ISSUE FURTHER, CONSIDERING THE CIRCULAR NO.21/2015 DATED 10 TH DECEMBER, ITA NO.2768/DEL/2014 2 2015 OF CBDT, WHICH HAS REVISED THE MONETARY LIMIT FOR FILING OF THE DEPARTMENTAL APPEAL TO THE ITAT AT RS.10 LAC, WE DE EM IT APPROPRIATE TO FIRST REFER TO SECTION 268A OF THE INCOME-TAX AC T, 1961 WHICH HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSP ECTIVE EFFECT FROM 01.04.1999, READING AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTH ORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PU RPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFE RENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PROVISIONS OF THIS C HAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORI TY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSU E IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT P RECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR ; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER AS SESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO T HE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APP EAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIE SCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APP EAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH A PPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUC TIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIR CUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPE AL OR APPLICATION ITA NO.2768/DEL/2014 3 FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED U NDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY.] 2. RELEVANT EXTRACTS (PARAS 1 TO 4) FROM THE AFORES AID CBDT CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 IS ALSO RE PRODUCED HEREUNDER FOR READY REFERENCE: SUBJECT : REVISION OF MONETARY LIMITS FOR FI LING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL A ND HIGH COURTS AND SLP BEFORE SUPREME COURT MEASURES FOR REDUCIN G LITIGATION REG. REFERENCE IS INVITED TO BOARDS INSTRUCTION NO 5/20 14 DATED 10.07.2014 WHEREIN MONETARY LIMITS AND OTHER CONDIT IONS FOR FILING DEPARTMENTAL APPEALS (IN INCOME-TAX MATTERS) BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT WERE SPECIFIED. 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE T HE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVE N HEREUNDER: S. NO APPEALS IN INCOME -TAX MATTER 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 LIMIT S 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 W OULD HAVE BEEN ITA NO.2768/DEL/2014 4 CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E 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 CHARGEAB ILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL B E THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDIT IONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 3. WE HAVE SEEN THAT THE MONETARY LIMITS HAVE BEEN MADE APPLICABLE RETROSPECTIVELY BY THE CBDT IN THE SAID CIRCULAR AS WOULD BE EVIDENT FROM THE FOLLOWING EXTRACT:- 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 AB OVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERA TIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4. THE DEPARTMENT WAS REPRESENTED BY CIT, DR, SHRI RAVI JAIN, WHO, IN RESPONSE TO THE CBDT CIRCULAR, STATED IN TH E PRESENT APPEAL WHICH STAND WAS TAKEN IN ALL THE DEPARTMENTAL APPEA LS ALSO THAT HE WOULD NEED TIME TO CALL FOR THE REPORT FROM THE ASS ESSING OFFICER AS WELL AS INSTRUCTIONS FROM THE ADMINISTRATIVE CIT FO R WITHDRAWING THE APPEALS AS THEY HAVE BEEN FILED WITH APPROVAL OF TH E ADMINISTRATIVE CIT. REFERRING TO PARA 7 OF THE AFORESAID CIRCULAR , THE LD.CIT, DR ALSO SUBMITTED THAT THE WITHDRAWAL OF THE APPEAL BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT SHOULD NOT BE CONSIDERED AS A PRECEDENT IN THE SUBSEQUENT YEARS OF THE ACCEPTANCE OF THE ISSUE S INVOLVED IN A SUBSEQUENT YEAR BEFORE THE ITAT WHERE THE APPEAL MA Y BE ABOVE THE TAX LIMIT AS PRESCRIBED IN THE CIRCULAR. ACCORDING LY IN SUCH AN ITA NO.2768/DEL/2014 5 EVENTUALITY, IN THOSE YEARS THE APPEAL BY THE ITAT SHOULD BE DECIDED ON MERITS AS HAS BEEN CLARIFIED BY THE CBDT IN PARA 7. THE RELEVANT EXTRACT OF THE CIRCULAR IS ALSO EXTRACTED HEREUNDER :- 7. IN THE PAST, A NUMBER OF INSTANCES HAVE COME TO THE NOTICE OF THE BOARD, WHEREBY AN ASSESSEE HAS CLAIMED RELIEF FROM THE TRIBUNAL OR THE COURT ONLY ON THE GROUND THAT THE DEPARTMENT HAS IM PLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN THE CASE O F THE ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR IN THE CASE OF ANY OTHER A SSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR, BY NOT FILING AN APPE AL ON THE SAME DISPUTED ISSUES. THE DEPARTMENTAL REPRESENTATIVES/C OUNSELS MUST MAKE EVERY EFFORT TO BRING TO THE NOTICE OF THE TRIBUNAL OR THE COURT THAT THE APPEAL IN SUCH CASES WAS NOT FILED OR NOT ADMITTED ONLY FOR THE REASON OF THE TAX EFFECT BEING LESS THAN THE SPECIFIED MON ETARY LIMIT AND, THEREFORE, NO INFERENCE SHOULD BE DRAWN THAT THE DE CISIONS RENDERED THEREIN WERE ACCEPTABLE TO THE DEPARTMENT. ACCORDIN GLY, THEY SHOULD IMPRESS UPON THE TRIBUNAL OR THE COURT THAT SUCH CA SES DO NOT HAVE ANY PRECEDENT VALUE. AS THE EVIDENCE OF NOT FILING APPE AL DUE TO THIS INSTRUCTION MAY HAVE TO BE PRODUCED IN COURTS, THE JUDICIAL FOLDERS IN THE OFFICE OF CIT MUST BE MAINTAINED IN A SYSTEMIC MANNER FOR EASY RETRIEVAL. 5. THE LD. AR REPRESENTING THE ASSESSEE SUBMITTE D THAT THE AFORESAID CIRCULAR IS FULLY AND SQUARELY APPLICABLE AS THE TA X EFFECT IS WELL BELOW THE LIMIT OF RS.10 LAC. 6. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES BEF ORE THE BENCH AND BEING OF THE CONSIDERED VIEW THAT THERE IS NO N ECESSITY FOR ADJOURNING THE APPEAL AS THE TAX EFFECT INVOLVED IN THE APPEALS OF THE REVENUE IS LESS THAN RS.10 LAC THE ORAL REQUEST WAS REJECTED. HOWEVER, BY WAY OF ABUNDANT CAUTION LIBERTY IS GRANTED TO TH E REVENUE THAT IN CASE ON RECEIPT OF THE ORDER THE ASSESSING OFFICER FINDS THAT THE TAX EFFECT IS ABOVE RS.10 LAC OR IN ANY OTHER MANNER TH E CIRCULAR IS NOT APPLICABLE, HE WOULD BE AT LIBERTY TO FILE A MISCEL LANEOUS APPLICATION ITA NO.2768/DEL/2014 6 POINTING OUT THESE FACTS. WE ALSO TAKING NOTE OF T HE CONCERNS EXPRESSED BY THE LD.CIT, DR AND MAKE IT CLEAR THAT AS A RESULT OF THE DISMISSAL OF THE REVENUES APPEAL ON THE GROUND OF TAX EFFECT THE SAID ORDER WOULD NOT ACT AS A PRECEDENT WHERE THE TAX EF FECT IS MORE IN ANY SUBSEQUENT OR PRIOR YEAR WHERE THE REVENUE WOULD WA NT TO AGITATE THE ISSUES ON SIMILAR GROUNDS BEFORE THE ITAT ON MERIT. ACCORDINGLY, IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES RELYING ON THE AFORESAID CIRCULAR WHICH AS PER JUDICIAL PRECEDENTS IS BINDIN G ON THE REVENUE, THE APPEAL OF THE REVENUE IS DISMISSED. RELIANCE IS PLACED ON ORDERS DATED 15.5.2015 IN ITA NO.302/AHD/2014 AND ORDER DA TED 16.12.2015 IN ITA NO.4771/DEL/2012 PASSED BY THE DELHI BENCHES . 7. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 17/12/2015. SD/- SD/- [G.D. AGRAWAL] [DIVA SINGH] VICE PRESIDENT JUDICIAL MEMBER DATED, 17 TH DECEMBER, 2015. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.