DCIT Corporate Circle 2(1), CHENNAI V. Fiveley Transport Rail Technologies India Ltd., Hosur

ITA 2862/CHNY/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0501 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 27-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R ANITA
• Keywords: Tax effect
• Section: 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI , . , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO. 2862 /CHNY/201 7 / ASSESSMENT YEAR: 20 11 - 12 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 2 ( 1 ) WANAPA RTHY BLOCK, 121, M.G. ROAD, CHENNAI 600 034 VS. M/S. FIVELEY TRANSPORT RAIL TECHNOLOGIES INDIA LIMITED , POST BOX NO.39, HARITA, HOSUR 635 109. [PAN: AAGCS 8525B ] ( /APPELLANT) ( /RESPONDENT) / APPELLAN T BY : MS. R. ANITA, JCIT /RESPONDENT BY : MR. SAROJ KUMAR PARIDA , ADVOCATE / DATE OF HEARING : 09 . 12 .2019 / DATE OF PRONOUNCEMENT : 0 9 . 1 2 .2019 / O R D E R PER SHRI GEORGE MATHAN, JUDICIAL MEMBE R : 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) - 6 , CHENNAI AND, MOST IMPORTANTLY, THE TAX EFFECT INVOLVED IN THE APPEAL DOES NOT EXCEED RS.50,00,0 00/ - IN TH IS APPEAL . ITA NO. 2862 /CHNY/2017 : - 2 - : 2. THERE WAS A DELAY OF 6 DAYS IN FILING OF APPEAL BEFORE THIS TRIBUNAL. THE REVENUE HAS FILED A PETITION FOR CONDONATION OF DELAY. WE HAVE HEARD THE LD. DR. WE FIND THAT THERE WAS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN THE STIPULATED TIME. THEREFORE, WE CONDONE THE DELAY. 3 . MS. R. ANITA , JCIT REPRESENTED ON BEHALF OF THE REVENUE AND MR. SAROJ KUMAR PARIDA, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 4 . VIDE CBDT CIRCULAR NO.17/2019 IN F.NO.279/MISC.142/2007 - I TJ(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 A NNOUNCED 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 50, 00,000 OR LESS. 5 . IN VIEW OF THE ABOVE FACTUAL BACKGROUND AND THE CONCESSION BY THIS CBDT CIRCULAR, ALL THESE APPEALS MUST BE DISMISSED AS WITHDRAWN AND THE RELATED CROSS OBJECTIONS MUST BE DISMISSED AS INFRUCTUOUS. 6 . THIS CIRCULAR, ONLY ENHANCES T HE MONETARY LIMITS AND GIVES FURTHER RELAXATION. THE OLD CIRCULAR, BEYOND ANY DISPUTE OR CONTROVERSY, CATEGORICALLY APPLIED TO THE PENDING APPEALS AS ON THE DATE OF ISSUANCE OF CIRCULAR. 7 . THE CIRCULAR DATED 8TH 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 HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME - TAX CASES BE ENHANCED ITA NO. 2862 /CHNY/2017 : - 3 - : 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 SHALL READ AS FOLLOWS: 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 APPEALS 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 O F THE CIRCULAR IS SUBSTITUTED BY THE FOLLOWING PARA: 5. THE ASSESSING 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 FILED 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 I N MORE THAN ONE ASSESSMENT YEAR 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. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY 4. THE SAID MODIFICATIONS SHALL COME INTO EFFECT FROM THE DATE OF ISSUE OF THIS CIRCULAR. 8 . CLEARLY, ALL OTHER PORTIONS OF THE CIRCULAR NO. 3 OF 2018 (SUPRA) HAVE REMAINED INTACT. THE PORTION WHICH HAS REMAINE D 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/ AP PEALS/ CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARE 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. 9 . THE HONBLE SUPREME COURT IN THE CASE OF THE COMMISSIONER OF INCOME TAX - 5, NEW DELHI VS. KESHAV POWER LTD., IN SLP NO.21 497/2019 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: SINCE THE TAX EFFECT INVOLVED IN THE MATTER IS LESS THAN RS.2/ - CRORES, GOING BY THE LATEST CI RCULAR 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. ITA NO. 2862 /CHNY/2017 : - 4 - : 10 . LEARNED COMMISSIONER (DR) SUBMITS LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTH ER VERIFICATIONS, AND TO SEEK RECALL THE DISMISSAL OF APPEALS AND RESTORATION OF THE APPEALS IN THE CASES (I) IN WHICH IT CAN BE DEMONSTRATED THAT THE APPEALS ARE COVERED BY THE EXCEPTIONS, AND (II) WHICH ARE INADVERTENTLY INCLUDED IN THIS BUNCH OF APPEALS , WHEREIN THE TAX EFFECT, IN TERMS OF THE CBDT CIRCULAR (SUPRA), EXCEEDS RS . 50,00,000 / - . NONE OPPOSES THIS PRAYER; WE ACCEPT THE SAME. WE MAKE IT CLEAR THAT THE APPELLANTS SHALL BE AT LIBERTY TO POINT OUT THE CASES WHICH ARE WRONGLY INCLUDED IN THE APPEALS SO SUMMARILY DISMISSED, EITHER OWING TO WRONG COMPUTATION OF TAX EFFECT OR OWNING TO SUCH CASES BEING COVERED BY THE PERMISSIBLE EXCEPTIONS - OR FOR ANY OTHER REASON, AND WE WILL TAKE APPROPRIATE REMEDIAL STEPS IN THIS REGARD. 1 1 . 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 A PPEAL FILED BY THE REVENUE IS FOUND TO BE NON - MAINTAINABLE. 1 2 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 9 TH DECEMBER , 2019 IN CHENNAI. SD/ - ( . ) ( S. JAYARAMAN ) /ACCO UNTANT MEMBER SD/ - ( ) (GEORGE MATHAN) /JUDICIAL MEMBER / CHENNAI, / DATED: 9 TH DECEMBER , 2019 . IA , SR. P.S / COPY TO: 1. / APPELLANT 2. / RESPONDENT 3. ( ) / CIT(A) 4. / CIT 5. / DR 6. / GF