DCIT, Kanpur V. Shri Yuvraj Singh, Kanpur

ITA 408/LKW/2011

• Counselvise Citation: 40823714 RSA 2011
• Duration Of Justice: 2 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 01-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: YOGESH AGARWAL
• Keywords: Tax effect
• Section: 43B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.408/LKW/2011 A.Y.:2008 - 09 DY.C.I.T., CENTRAL CIRCLE - 2, KANPUR. VS. SHRI YUVRAJ SINGH, 24/4, THE MALL, KANPUR. PAN:AJWPS3767K (APPELLANT) (RESPONDENT) C.O.NO.29/LKW/2011 (IN ITA NO.408/LKW/2011) A.Y.:2008 - 09 SHRI YUVRAJ SINGH, 24/4, THE MALL, KANPUR. PAN:AJWPS3767K VS. DY.C.I.T., CENTRAL CIRCLE - 2, KANPUR. (OBJECTOR) (RESPONDENT) REVENUE BY SHRI ALOK MITRA, D.R. ASSESSEE BY SHRI YOGESH AGARWAL, ADVOCATE DATE OF HEARING 26/11/2013 DATE OF PRONOUNCEMENT 2 3 /12/2013 O R D E R PER A. K. GARODIA, A.M. THE APPEAL IS FILED BY THE REVENUE AND THE CROSS OBJECTION IS FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST THE ORDER OF CIT (A) - I, KANPUR DATED 01/04/2011 FOR ASSESSMENT YEAR 2008 - 2009. 2 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT IN THE PRESENT CASE, THE APPEAL EFFECT IS BELOW RS.3 LAKHS AND THEREFORE, AS PER THE BOARDS CIRCULAR, THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE. HE SUBMITTED COPY OF THE WORKING OF THE TAX EFFECT AS PER WHICH THE TAX EFFECT HAS BEE N WORKED OUT AT RS.3 LAKHS. 3. IN REPLY, IT WAS SUBMITTED BY LEARNED D.R. OF THE REVENUE THAT THIS TAX EFFECT WORKING OF THE ASSESSEE IS WITHOUT INCLUDING EDUCATION CESS AND IF THE SAME IS INCLUDED, THE TAX EFFECT IS MORE THAN RS.3 LAKHS. 4. IN THE REJOI NDER, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT AS PER THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF DALMIA CEMENT (BHARAT) LTD. VS. CIT IN ITR NO. 58/1997, DATED 23 RD JULY, 2013, IT WAS HELD THAT FOR THE PURPOSE OF SECTION 4 3B OF THE ACT, TAX DOES NOT INCLUDE CESS. HE SUBMITTED THE COPY OF TH IS JUDGMENT, WHICH IS AVAILABLE ON PAGE NO.11 OF THE PAPER BOOK. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE JUDGMENT CITED BY LEARNED A.R. OF THE ASSESSEE. WE FIND THAT AS PER BOARDS INSTRUCTION NO. 3 OF 2011 DATED FEBRUARY 9, 2011, IT WAS PRESCRIBED THAT THE REVENUE SHO ULD NOT FILE ANY APPEAL BEFORE THE TRIBUNAL IF THE TAX EFFECT DOES NOT EXCEED RS.3 LAKHS. ADMITTEDLY, IN THE PRESENT CASE, TAX EFFECT WITHOUT INCLUDING CESS IS RS.3 LAKHS ONLY AND THE SAME IS NOT EXCEEDING RS.3 LAKHS. NOW THE ONLY QUESTION TO BE DECIDED IS WHETHER THE TERM TAX USED IN BOARDS INSTRUCTION IS INCLUSIVE OF CESS OR WITHOUT INCLUDING CESS. IN THIS REGARD, WE ARE OF THE CONSIDERED OPINION THAT THE JUDGMENT OF HON'BLE DELHI HIGH COURT CITED BY LEARNED A.R. OF THE ASSESSEE IS RELEVANT BECAUSE IN THIS CASE ALSO, THE TERM TAX AND CESS WERE LOOKED INTO IN RESPECT OF INCOME TAX PROCEEDINGS ONLY. IT IS NOTED BY HON'BLE DELHI HIGH COURT THAT AS PER THE PROVISIONS OF SECTION 43B, 3 APPLICABLE DURING FINANCIAL YEAR 85 - 86, THE DISALLOWANCE WAS TO BE MADE U /S 43B IN RESPECT OF ANY SUM PAYABLE BY THE ASSESSEE BY WAY OF TAX OR DUTY UNDER ANY LAW AND LATER ON WITH EFFECT FROM 01/04/89, SUCH DISALLOWANCE WAS REQUIRED TO BE MADE IN RESPECT OF ANY SUM PAYABLE BY THE ASSESSEE BY WAY OF TAX, DUTY OR CESS OR FEE BY W HATEVER NAME CALLED. IN THAT CASE , IT WAS HELD BY HON'BLE DELHI HIGH COURT THAT CESS AND CESS SURCHARGE DO NOT F ALL WITHIN THE CHARACTERISTICS OF THE TAX. FOLLOWING THIS JUDGMENT, WE HOLD THAT IN THE PRESENT CASE ALSO , FOR THE PURPOSE OF DECIDING APPLICA BILITY OF BOARDS INSTRUCTION, TAX EFFECT SHOULD BE WORKED OUT WITHOUT INCLUDING CESS AND THEREFORE, IN THE PRESENT CASE, THE PRESENT APPEAL OF THE REVENUE IS HIT BY THE BOARDS INSTRUCTION AND TAX EFFECT, BEING NOT EXCESS OF RS.3 LAKHS, THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE. AS A RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. 6. NOW WE TAKE UP THE CROSS OBJECTION FILED BY THE ASSESSEE. THE CROSS OBJECTION IS ONLY IN SUPPORT OF THE ORDER OF LEARNED CIT ( A) AND SINCE THE APPEAL OF THE REVENU E HAS BEEN DISMISSED AS NOT MAINTAINA BLE BECAUSE OF LOW TAX EFFECT, THE CROSS OBJECTION OF THE ASSESSEE DOES NOT SURVIVE FOR THIS REASON ALSO. ACCORDINGLY, THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE AS W ELL AS THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 3 /12/2013 *C.L.SINGH 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR