DCIT, Bangalore V. Sri. SAntosh Shanbhag, Bangalore

ITA 303/BANG/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8726 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-03-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 29-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS NEERA MALHOTRA CIT D R R
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER AND SHRI VIJAYPAL RAO , JUDICIAL MEMBER I.T . A. NO S . 303 TO 305 /BANG/20 1 2 ( ASSESSMENT YEARS : 200 2 - 03 , 2007 - 08 & 20 08 - 09 ) DY. COMMISSIONER OF INC OME TAX, CENTRAL CIRCLE 2(1), BANGALORE. VS. SRI SANTOSH SHANBHAG, NO.3/3 - 1, PALACE LOP ROAD, VASANTHNAGAR WEST, BANGALORE . APPELLANT RESPONDENT. C.O. NOS. 66 TO 68/BANG/2012 (IN I.T. A. NO S . 303 TO 305 /BANG/20 12) ( ASSESSMENT YEARS : 2002 - 03, 2007 - 08 & 2008 - 09 ) (BY ASSESSEE) I.T. A. NO S . 306 TO 310 /BANG/20 12 ( ASSESSMENT YEARS : 2002 - 03, 2005 - 06 TO 2008 - 09 ) DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), BANGALORE. VS. SMT. PREMA SHANBHAG, NO.3/3 - 1, PALACE LOP ROAD, VASANTHNAGAR WEST, BANGALORE. APPELLANT RESPONDENT. C.O. NOS. 67 TO 73/BANG/2012 (IN I.T. A. NO S . 306 TO 310 /BANG/20 12) ( ASSESSMENT YEARS : 2002 - 03, 2005 - 06 TO 2008 - 09 ) (BY ASSESSEE) APPELLANT BY : MRS. NEERA MALHOTRA, CIT (D.R) RESPONDENT BY : SHRI SURESH MUTHUKRISHNA, C.A. DA TE OF H EARING : 6.1.2016. DATE OF P RONOUNCEMENT : 6.1.2016 . 2 ITA NO S . 303 TO 310 /BANG/ 201 2 & C.O. NOS.66 TO 73/BANG/2012 O R D E R PER SHRI VIJAYPAL RAO, J. M. : TH ESE ARE APPEALS F ILED BY REVENUE AND CROSS OBJECTIONS FILED BY THE ASSESSEES DIRECTED AGAINST SEPARATE ORDER S ALL DATED 10.1.2012 OF COMMISSIONER OF INCOME TAX (APPEALS) - VI , BANGAL ORE FOR THE ASSESSMENT YEARS 2002 - 03 AND 2005 - 06 TO 20 08 - 09. 02. WHEN THE APPEAL S WERE TA KEN UP FOR HEARING LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT TAX EFFECT INVOLVED IN TH ESE APPEAL S ARE LESS THAN RS.10 LAKHS FOR THE IMPUGNED ASSESSMENT YEAR OR THE PENALTY LEVIED WHICH WAS DELETED BY THE CIT (A) . THEREFORE, THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF THE CIRCULAR NO.21/2015, DT.10.12.2015 WHEREIN THE LIMIT FOR FILING THE APPEALS BY THE DEPARTMENT IS PROVIDED AS RS.10 LAKHS. 03. LD. DR HAS NOT DISPUTED THE TAX EFFECT BEING BELOW RS.10 LAKHS IN THE ISSUE INVOLVED IN THE REVENUE S APPEAL S . HOWEVER LD DR STATED THAT EXISTENCE OR NOT OF ANY REVENUE AUDIT OBJECTIONS LEADING TO THE FILING OF THE APPEAL NEEDED TO BE ASCERTAINED. 04. WE HAVE PERUSED THE ORDERS AND HEARD THE CONTENTIONS. PARAS 3, 4 & 10 OF THE CIRCULAR NO.21/20 15 (SUPRA) IS REPRODUCED HEREUNDER : 3. HENCEFORTH, APPEALS/SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: 3 ITA NO S . 303 TO 310 /BANG/ 201 2 & C.O. NOS.66 TO 73/BANG/2012 S.NO. APPEALS IN INCOME - TAX MATTERS MONETARY LIMIT (IN RS.) 1. BEFORE APPELLAT E 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 DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESP ECT OF THE ISSUES AGAINST WHICH APPEAL 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 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 INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFF ECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TA X LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 05. THE TAX EFFECT ON THE ISSUES AND / OR THE PENALTY THAT IS DISPUTED BY THE REVENUE IS LESS THAN RS.10 LAKHS FOR THE IMPUGNED ASSESSMENT YEAR S . CONSTITUTIONAL VALIDITY OF ANY PROVISIONS OF THE ACT OR RULES NOR THE LEGALITY OR VIRES OF ANY BOARD ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR WAS AN ISSUE BEFORE THE LOWER AUTHORITIES. REVENUE HAS NOT BROUGHT TO OUR NOTICE ANYTHING TO SHOW THAT THE APPEAL AROSE ON AN ISSUE 4 ITA NO S . 303 TO 310 /BANG/ 201 2 & C.O. NOS.66 TO 73/BANG/2012 EMANATING FROM ANY REVENUE AUDIT OBJECTIONS ACCEPTED BY THE DEPARTMENT. ADDITION GIVING RISE TO THE APPEALS DOES NOT RELATE TO ANY UNDISCLOSED FOREIGN ASSETS / BANK ACCOUNTS. THUS WE FIND THAT THE CIRCULAR NO.21/ 2015 (SUPRA) IS SQUARELY APPLICABLE IN THIS CASE. HOWEVER IF REVENUE, AT A LATER STAGE FIND THAT APPEAL ARISE OUT OF ISSUES EMANATING FROM AUDIT OBJECTION IT WILL BE FREE TO FILE MP F OR RECALLING THIS ORDER. 06. THE CROSS OBJECTIONS ARE ONLY SUPPORTING THE IMPUGNED ORDERS IN NATURE AND NOT RAISED ANY FRESH GROUNDS. ACCORDINGLY, IN VIEW OF THE DISMISSAL OF THE REVENUE S APPEALS, THE CROSS OBJECTIONS BECOME INFRUCTUOUS. 0 7 . IN THE RES ULT, THE APPEAL S OF THE REVENUE AS WELL AS C.O. OF ASSESSEE ARE DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JAN., 2016. SD/ - ( ABRAHAM P GEORGE ) ACCOUNTANT MEMBER SD/ - (VIJAYPAL RAO) JUDICIAL MEMBER *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE. (TRUE COPY) BY ORDER