DCIT, Central Circle, Sambalpur V. Sri Bajrang Kumar Agrawal, Sundargarh

ITA 388/CTK/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8857 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 23-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S M KESHMAMAT
• Assessee Lawyers: S K TULSIYAN
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Tax effect
• Section: 73

Judgement Text

P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO . 388 /CTK/201 8 ASSESSMENT YEAR : 20 09 - 2010 D CIT, CENTRAL CIRCLE, SAMBALPUR VS. SRI BAJRANG KUMAR AGARWAL, OM NIWAS, BARSUAN, SUNDARGARH PAN/GIR NO. A AVPA 3653 J (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI S .K.TULSIYAN , AR REVENUE BY : SHRI S.M.KESHMAMAT , CIT DR DATE OF HEARING : 14 / 01 / 20 20 DATE OF PRONOUNCEMENT : 14 / 01 /20 20 O R D E R PER C.M.GARG,JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) - 2, BHUBANESWAR DATED 26.6.2018 FOR THE ASSESSMENT YEAR 20 09 - 2010 . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: (I) THE LD. CIT (APPEALS) IGNORED THE PROVISIONS OF SECTION 271(1B) OF THE I.T. ACT. (II) IN THE FACTS AND CIRCUMSTANCES, THE CIT (APPEALS) ERRED IN IGNORING THE FACT THAT THE ASSESSEE FULLY KNEW IN DETAIL THE EXACT CHARGE OF THE DEPARTME NT AGAINST IT AND HENCE THE SO - CALLED AMBIGUOUS WORDINGS IN THE NOTICE HAS NOT IMPAIRED OR PREJUDICED THE RIGHT OF THE ASSESSEE OF REASONABLE OPPORTUNITY OF BEING HEARD. (III) IN THE FACTS AND CIRCUMSTANCES, THE CIT (APPEALS) ERRED IN IGNORING THE FACT TH AT THERE IS NO PREJUDICE OR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IN THE CASE OF THE ASSESSEE AND THE ASSESSEE WAS NEVER DENIED THE RIGHTS TO CONTEST PENALTY PROCEEDINGS AND HAD FULL OPPORTUNITY TO MEET THE CASE OF REVENUE SO AS TO SHOW THAT THE CONDI TIONS STIPULATED IN SECTION 271(L)(C) DO NOT EXIST AND THAT IT IS NOT LIABLE TO PAY PENALTY. ITA NO. 388 /CTK/201 8 ASSESSMENT YEAR : 20 09 - 2010 P A G E 2 | 5 (IV) THE CIT (APPEALS) OUGHT TO HAVE FOLLOWED THE DECISIONS OF HON'BLE HIGH COURT OF ANDHRA PRADESH IN THE CASE OF CIT VS. CHANDULAL (152 ITR 238) & SRINIVASA PITTY & SONS VS. CIT (173 ITR 306). (V) THE CIT (APPEALS) OUGHT TO HAVE HELD THAT THE CASE OF SSA'S EMERALDS MEADOW VS. CIT (2016) 73 TAXMANN.COM 248 (SC) IS NOT BINDING IN VIEW OF THE DECISION OF SHANMUGAVEL NADAR (263 ITR 658) (SC), AS THE SAME IS MERELY A DISMISSAL, WHERE IT WAS HELD THAT A REJECTION OF SLP THROUGH A NON - SPEAKING ORDER IS NOT A BINDING PRECEDENT. (VI) THE CIT (APPEALS) OUGHT TO HAVE FOLL OWED THE RATIO OF HON'BLE SUPREME COURT'S DECISION IN THE CASE OF SKYLIGHT HOSPITALITY LLP VS. ACIT, DATED 06 - 04 - 2018, WHERE IN IT WAS HELD THAT 'WE ARE CONVINCED THAT WRONG NAME GIVEN IN THE NOTICE WAS MERELY A CLERICAL ERROR WHICH COULD BE CORRECTED UNDE R SECTION 292B OF THE INCOME TAX ACT. THE SPECIAL LEAVE PETITION IS DISMISSED.' (VII) THE CIT (APPEALS) OUGHT TO HAVE CONSIDERED THE IMPORT OF SECTION 292B WHICH CAME UP FOR DISCUSSION IN THE CASE OF CIT VS. JAGAT NOVEL EXHIBITIONS (P) LTD., (2013) 356 IT R 559 (DEL), WHEREIN IT WAS HELD THAT 'THE AFORESAID PROVISION (SECTION 292B) HAS BEEN ENACTED TO CURTAIL AND NEGATE TECHNICAL PLEAS DUE TO ANY DEFECT, MISTAKE OR OMISSION IN A NOTICE/SUMMONS/RETURN. THE PROVISION WAS ENACTED BY TAX LAWS (AMENDMENT) ACT, 1 975 WITH EFFECT FROM 1 ST OCTOBER, 1975. IT HAS A SALUTARY PURPOSE AND ENSURES THAT TECHNICAL OBJECTION, WITHOUT SUBSTANCE AND WHEN THERE IS EFFECTIVE COMPLIANCE OR COMPLIANCE WITH INTENT AND PURPOSE, DO NOT COME IN THE WAY OR AFFECT THE VALIDITY OF THE ASSESSMENT PROCEEDINGS.' 3 . THE APPEAL FILED BY THE REVENUE IS BARRED BY LIMITATION BY 22 DAYS. THE REVENUE HAS FILED CONDONATION PETITION FOR ADMITTING THE APPEAL. HAVING CONSIDERED THE PETITION AND HEARING THE PARTIES, WE ARE SATISFIED THAT THERE IS REASONABLE CAUSE FOR FILING THE APPEAL BELATEDLY. HENCE, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 4 . AT THE OUTSET, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS.50 LAKHS AND, THEREFORE, IN VIEW OF CBDT CIRCULAR NO.17/2019 DATED 8 TH AUGUST, 2019, THE SAME IS NOT MAINTAINABLE AND SHOULD BE DISMISSED. ITA NO. 388 /CTK/201 8 ASSESSMENT YEAR : 20 09 - 2010 P A G E 3 | 5 5 . WE FIND THAT CBDT VIDE CIRCULAR NO.17/2019 IN F.NO.279/MISC.142/2007 - ITJ(PT) DATED 8TH AUGUST, 2019, 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 ASSESS EE 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 . THIS CIRCULAR, ONLY ENHANCES THE 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 (SUBSEQUENT AMENDMENT THERETO), AND ALL IT DOES IS TO REPLACE PARAGRAPH NOS. 3 AND 5 OF THE SAID CIRCULAR. 8. THE HON'BLE 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 AND 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 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'. ITA NO. 388 /CTK/201 8 ASSESSMENT YEAR : 20 09 - 2010 P A G E 4 | 5 9. LEARNED D.R. SUBMITS THAT LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIFICATIONS, AND TO SEEK RECALL THE DISMI SSAL OF APPEAL AND RESTORATION OF THE APPEAL IN THE CASE: (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 C IRCULAR (SUPRA), EXCEEDS RS 50,00,000. 10. WE ACCEPT THE REQUEST OF LD D.R. WE MAKE IT CLEAR THAT THE APPELLANT SHALL BE AT LIBERTY TO POINT OUT THE CASE WHICH IS WRONGLY INCLUDED IN THE APPEAL SO SUMMARILY DISMISSED, EITHER OWING TO WRONG COMPUTATION O F 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. 11. IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF THE COMMISSIONER OF INCOME TAX - 5, NEW DELHI VS. KESHAV POWER LTD. (SUPRA) AND IN THE LIGHT OF THE ABOVE DISCUSSIONS, THE APPEAL FILED BY THE REVENUE IS FOUND TO BE NON - MAINTAINABLE AND HENCE, DISMISSED. 12. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 14 / 01 /20 20 . S D/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 14 / 01 /20 20 B.K.PARIDA, SPS ITA NO. 388 /CTK/201 8 ASSESSMENT YEAR : 20 09 - 2010 P A G E 5 | 5 COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : DCIT, CENTRAL CIRCLE, SAMBALPUR 2. THE RESPONDENT. SRI BAJRANG KUMAR AGARWAL, OM NIWAS, BARSUAN, SUNDARGARH 3. THE CIT(A) - 2, BHUBANESWAR 4. PR.CIT - 2, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//