Asstt. Commissioner of Income Tax-6, Kanpur V. M/s.Tradestone Equestrian Pvt Ltd., Kanpur

ITA 403/LKW/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3351 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-06-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 19-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B : LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A. NO. 403 /LKW/ 2012 ASSESSMENT YEAR: 2006 - 07 A.C.I.T. - 6, VS. M/S TRADESTONE EQUESTRIAN PVT. LTD., KANPUR. 39, FACTORY AREA, FAZALGANJ, KANPUR. PAN:AABCT8711D (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. RANU BISWAS, D.R. RESPONDENT BY : SHRI RAKESH GARG, ADVOCATE DATE OF HEARING : 0 6 /0 6 /201 3 DATE OF P RONOUNCEMENT :07/06/2013 ORDER PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF CIT(A) ON VARIOUS GROUNDS, WHICH ARE AS UNDER: 1. THAT THE LD. CTT (A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE RELIEF O F ` 3 ,94,865 / - U/S 4 0 (A)(I) OF T HE IT. ACT, 196 1 AS IN DECIDING THE APPEAL THE CIT(A) HAS TAKEN THE ASPECT OF FINAL TAXABILITY OF NON RESIDENTS BUT AS PER ACT, THE SECTION 40(A)(I) INVOKE EVEN IF THERE IS NO FIN AL TAXABILITY OF NON - RESIDENT . A LSO THE NATURE OF PAYMENT IS OF TECHNICAL NATURE BOTH AS PER BOOKS OF ACCOUNTS OF THE ASSESSEE AND A L SO AS PER NA TURE OF PAYMENT BEING TECHNICAL. 2 2. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A) - I, KANPUR BEING ERRONEOUS IN LAW AND ON FACTS DESERVES TO BE VACATE D AND THE ORDER OF THE ASSESSING OFFICER BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL OR TAKE ADDITIONAL GROUND DURING THE PENDENCY OF THIS APPEAL. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT TAX EFFECT IN THIS APPEAL IS BELOW THE PRESCRIBED LIMIT SO THE D EPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE INSTRUCTIONS ISSUED BY C.B.D.T. 3. THE LEARNED D. R., COULD NOT CONTROVERT THE ABOVE FACT. 4. WE HAVE GONE THROUGH THE RECORDS. SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUC TIONS OR DIRECTIONS TO OTHER INCOME - TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, I N PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), AN INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AU THORITY 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 ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE ORDERS OR 3 INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAV E REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRCUMSTANCES 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 B EEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ] 5. IT IS NOT IN DIS PUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INST ANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL, SO THIS APPEAL IS DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 07/06/2013 ) SD/. SD/. ( PRAMOD KUMAR) ( SUNIL KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07/06/2013 *SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR