ACIT CORPORATE CIRCLE 3(1), CHENNAI V. TAMIL NADU ELECTRICITY BOARD, CHENNAI

ITA 3058/CHNY/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5778 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 09-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & S HRI S.JAYARAMAN , ACCOUNTANT MEMBER ./ I.T.A.NOS.3058, 3059 & 3064/CHNY/2018 / ASSESSMENT YEARS: 2007-08, 2008-09 & 2013-14 ACIT, CORPORATE CIRCLE 3(1), CHENNAI. 600 034. VS. M/S.TAMIL NADU ELECTRICITY BOARD, (ERSTWHILE) & M/S. TAMIL NADU GENERATION AND DISTRIBUTION CORPORATION LIMITED., 800/144,NPKRR MAALIGAI ELECTRICITY AVENUE,ANNA SALAI, CHENNAI 600 002. [PAN AAACT 2959 K ] ( / APPELLANT) ( /RESPONDENT) ./ I.T.A.NO.3029/CHNY/2018 / ASSESSMENT YEAR : 2013-14 M /S. TAMIL NADU GENERATION AND DISTRIBUTION CORPORATION LIMITED. ,(FORMERLY TNEB ) 800/144,NPKRR MAALIGAI ELECTRICITY AVENUE,ANNA SALAI, CHENNAI 600 002. VS. ACIT, CORPORATE CIRCLE 3(1), CHENNAI. 600 034. [PAN AAACT 1245 M / AADCT 4784 E ] ( / APPELLANT) ( /RESPONDENT) ITA NOS. 3058,3059,3064,3029/CHNY/18 T.N.GENERATION AND CISTRIBUTION CORPN LTD :- 2 -: / REVENUE BY : MR.SAILENDRA MAMIDI,C.I.T D.R !' /ASSESSEE BY : MR.SAROJ KUMAR PARIDA,ADVOCATE & / DATE OF HEARING : 18 - 09 - 201 9 & / DATE OF PRONOUNCEMENT : 18 - 09 - 201 9 / O R D E R PER BENCH: ALL THESE THREE APPEALS FILED BY THE REVENUE FOR ASSESSMENT YEARS 2007-08, 2008-09 & 2013-14 AND T HE APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2013-14 ARE AGAINST THE COMMON ORDER OF LD.CIT(A)-11, CHENNAI IN ITA NOS.439,270,369,487,675, 746/13-14, 29,30/16-17, 96 /14-15, 171/15-16, 261/16-16 DATED 06.08.2018. 2. MR.SAILENDRA MAMIDI REPRESENTED ON BEHALF OF TH E REVENUE AND MR.SAROJ KUMAR PARIDA REPRESENTED ON BEHALF OF THE ASSESSEE . 3. SINCE THE ASSESSEE PERTAINING TO ASSESSMENT YEA R IS COMMON IN ALL THESE APPEALS, WE HEARD THESE APPEALS TOGETHER AND DISPOSE OF THE SAME BY THIS COMMON ORDER. 3.1 ALL THESE THREE APPEALS FILED BY THE REVENUE IS DELAYED BY 07 DAYS FOR WHICH THE ASSESSING OFFICER HAS FILED AN A FFIDAVIT FOR CONDONATION OF DELAY. THE DELAY IS ON ACCOUNT OF TH E APPEAL FILES ITA NOS. 3058,3059,3064,3029/CHNY/18 T.N.GENERATION AND CISTRIBUTION CORPN LTD :- 3 -: INADVERTENTLY GOT MIXED UP WITH OTHER FILES. CONSEQ UENTLY THE DELAY IN FILING THESE APPEALS OF REVENUE IS CONDONED. 4. AT THE OUTSET, IT IS FAIRLY AGREED BY BOTH THE PARTIES THAT THE TAX EFFECT INVOLVED IN THESE THREE APPEALS OF R EVENUE DOES NOT EXCEED RS.50,00,000/- IN EACH OF THESE APPEALS. 5. VIDE CBDT CIRCULAR NO.17/2019 IN F.NO.279/MISC .142/2007- ITJ(PT) DATED 8TH AUGUST, 2019, THE INCOME TAX DEP ARTMENT HAS FURTHER LIBERALIZED ITS POLICY FOR NOT FILING APPEA LS AGAINST THE DECISIONS OF THE APPELLATE AUTHORITIES IN FAVOUR OF THE TAXPAYERS, WHEREIN TAX INVOLVED IS BELOW CERTAIN THRESHOLD LIM ITS, 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 50 ,00,000 OR LESS. 6. IN VIEW OF THE ABOVE FACTUAL BACKGROUND AND THE CONCESSION BY THIS CBDT CIRCULAR, ALL THESE APPEALS MUST BE D ISMISSED AS WITHDRAWN AND THE RELATED CROSS OBJECTIONS MUST BE DISMISSED AS INFRUCTUOUS. 7. THIS CIRCULAR, ONLY ENHANCES THE MONETARY LIMIT S AND GIVES FURTHER RELAXATION. THE OLD CIRCULAR, BEYOND ANY DI SPUTE OR ITA NOS. 3058,3059,3064,3029/CHNY/18 T.N.GENERATION AND CISTRIBUTION CORPN LTD :- 4 -: CONTROVERSY, CATEGORICALLY APPLIED TO THE PENDING A PPEALS AS ON THE DATE OF ISSUANCE OF CIRCULAR. 8. THE CIRCULAR DATED 8TH AUGUST 2019 IS NOT A STA NDALONE 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 8THAUGUST 2019: 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGAT ION. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME-TAX CASES BE ENHANCED FURTHER THR OUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY, THE TABLE FOR MONETARY LIMITS SPECIFIE D 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 WHER E COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY TH E FOLLOWING PARA: ITA NOS. 3058,3059,3064,3029/CHNY/18 T.N.GENERATION AND CISTRIBUTION CORPN LTD :- 5 -: 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EF FECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERYASSESSEE. IF IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN M ORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RE SPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX E FFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONET ARY 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 TH AN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR NO APPEAL SHALL BE FILED IN RES PECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. I N CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE TH AN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY 4. THE SAID MODIFICATIONS SHALL COME INTO EFFECT FR OM THE DATE OF ISSUE OF THIS CIRCULAR. 9. 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 CIRCU LAR WHICH IS AS FOLLOWS: 13. THIS CIRCULAR WILL APPLY TO SLPS/ APPEALS/ CRO SS OBJECTIONS/ REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTI VELY TO PENDING SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARE 3 AB OVE MAY BE WITHDRAWN/ NOT PRESSED. 10. 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)T MI 811(SC) HAS ALSO APPLIED THE CIRCULAR NO.17/2019 DATED 08.0 8.2019 HAS DISMISSED THE APPEAL HOLDING AS FOLLOWS: ITA NOS. 3058,3059,3064,3029/CHNY/18 T.N.GENERATION AND CISTRIBUTION CORPN LTD :- 6 -: 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 . 11. LEARNED COMMISSIONER (DR) SUBMITS LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIFICA TIONS, AND TO SEEK RECALL THE DISMISSAL OF APPEALS AND RESTORATIO N OF THE APPEALS IN THE CASES (I) IN WHICH IT CAN BE DEMONSTRATED TH AT THE APPEALS ARE COVERED BY THE EXCEPTIONS, AND (II) WHICH ARE I NADVERTENTLY 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 T HAT THE APPELLANTS SHALL BE AT LIBERTY TO POINT OUT THE CAS ES WHICH ARE WRONGLY INCLUDED IN THE APPEALS SO SUMMARILY DISMIS SED, 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 STEP S IN THIS REGARD. 12. IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING T HE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF T HE COMMISSIONER OF INCOME TAX-5,NEW DELHI VS. KESHAV P OWER LTD., REFERRED TO SUPRA AND IN THE LIGHT OF THE ABOVE DIS CUSSIONS, ALL THE APPEALS FILED BY THE REVENUE ARE FOUND TO BE NON-MA INTAINABLE. ITA NOS. 3058,3059,3064,3029/CHNY/18 T.N.GENERATION AND CISTRIBUTION CORPN LTD :- 7 -: 13. IN THE RESULT, ALL THE APPEALS OF REVENUE FO R ASSESSMENT YEARS 2007-08, 2008-09 & 2013-14 ARE DISMISSED AS W ITHDRAWN. 14. NOW, WE PROCEED TO DEAL WITH THE ASSESSEES AP PEAL IN ITA NO.3029/CHNY/2018. 15. THE APPEAL HAS BEEN FILED BY THE ASSESSEE ON 24.11. 2018. DEFECT NOTICE DATED 11.12.2018 HAS BEEN SENT TO THE ASSESSEE BY RPAD INTIMATING THE FOLLOWING DEFECTS: (I) GROUNDS OF APPEAL BEFORE ITAT NOT FILED IN TRIPLICA TE (II) ORIGINAL FORM 36 NOT FILED IN TRIPLICTE THE ABOVE DEFECTS WERE SOUGHT TO BE CURED BY T HE ASSESSEE. 15.1 THE APPEAL WAS POSTED FOR HEARING ON 11.03.20 19, 13.03.2019, 28.05.2019 AND SUBSEQUENTLY, THE APPEAL WAS POSTED FOR HEARING TODAY, THAT IS ON 18.09.2019. HOWEVER, THE DEFECTS ARE NOT BEING CURED, IN SPITE OF ADEQUATE OPPORTUNITIES AFFORDED. 16. CONSEQUENTLY, THE APPEAL FILED BY THE ASSESSEE STA NDS DISMISSED FOR DEFECT UNCURED BY APPLYING THE PRINCI PLES LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PRASAD PRODUCTIONS P. LTD. VS. INCOME-TAX APPELLATE TRIBUN AL [1997] 226 ITR 778 (MAD). ITA NOS. 3058,3059,3064,3029/CHNY/18 T.N.GENERATION AND CISTRIBUTION CORPN LTD :- 8 -: 17. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMI SSED IN LIMINIE ON ACCOUNT OF DEFECTS UNCURED. 18. TO SUM UP, ALL THE THREE APPEALS OF THE REVENU E ARE DISMISSED AS WITHDRAWN AND THE APPEAL OF ASSESSEE IS DISMISSED IN LIMINIE ON ACCOUNT OF DEFECTS UNCURED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 18 TH SEPTEMBER, 2019, AT CHENNAI. SD/- SD/- ( ) (S. JAYARAMAN) # /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) $ # / JUDICIAL MEMBER / CHENNAI * / DATED: 18 TH SEPTEMBER, 2019. K S SUNDARAM !,- .- / COPY TO: 1 . / APPELLANT 3. / () / CIT(A) 5. - !4 / DR 2. !' / RESPONDENT 4. / / CIT 6. / GF