ITO, Ward - 5(3), Kolkata, Kolkata V. M/s. Bhagwati Plasto Works (P) Ltd., Kolkata

ITA 419/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87627 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2011
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE & HON BLE SRI N.K.SAINI , A M & HON BLE SRI GEORGE MATHAN , JM ] ITA NO .419/KOL/2011 ASSESSMENT YEAR : 2007 - 08 ( A PPELLANT ) (RESPONDENT) I.T.O., W A RD - 5(3 ) - VS - M/S. BHAGWATI PLASTO WORKS PVT.LTD., KOLKATA KOLKATA (PAN: AABCB 6057 C) FOR THE APPELLAN T SHRI RAJENDRA PRASAD, JCIT FOR THE RESPONDENT NONE (EXPARTE) DATE OF HEARING : 28 .01.2015 DATE OF PRONOUNCEMENT : 2 8 .01.2015. ORDER PER SHRI N.K.SAINI , AM THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 08.12.2010 OF L D. C.I.T - (A) - VI , KOLKATA AND PERTAINS TO A.YR. 2007 - 08 . 2. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSES SEE. NEITHER ANY ADJOURNMENT PETITION WAS MOVED. NOTICE OF HEARING WAS SENT TO TH E ASSESSEE THROUGH RPAD ON 17.11 .2014. IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED TO PROSECUTE THE MATTER. WE, THEREFORE, PROCEEDED TO DECIDE THE APPEAL EXPARTE QUA THE AS SESSEE ON MERITS AFTER HEARING THE LD. DR. 3. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL : 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT(A) - VI, KOLKATA HAS ERRED IN LAW IN DELETING THE ADDITION EVEN AFTER ADMITTING THE FACT THAT THESE EXPENSES WERE CAPITALIZED AND ADDED TO WORK - IN - PROGRESS. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT(A) - VI, KOLKATA HAS ERRED IN LAW IN DELETING THE ADDITION RELATING TO INTEREST FROM OTHER SOURCES AS THE SAME WAS OFFSET WITH THE INTEREST P AID FOR WOK - IN - PROGRESS, ALTHOUGH THIS INCOME WAS NOT TAKEN IN PROFIT AND LOSS ACCOUNT. 3. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DELETE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. ITA NO.419/KOL/2011 M/S. BHAGWATI PLASTO WORKS PVT.LTD., A.YR . 2007 - 08 2 4. DURING THE COURSE OF HEARING IT WA S FOUND THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/ - . AFTER HEARING THE LD. DR AND MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT , 2008 WIT H RETROSPECTIVE EFFECT FROM 01/ 4/99. THE PROVISIONS CONTAI NED IN SECTION 268A READ AS UNDER : - 268A (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DI RECTIONS TO OTHER INCOME - TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR AP PLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), AN INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR RE FERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSE 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 INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESEE, 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 HAVE 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 A NY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN 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 DISPUTE THAT THE BOARD S INSTRUCTION OR DIRECTION S ISSUED TO THE OTHER INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW O F THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 6. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS.4,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. ITA NO.419/KOL/2011 M/S. BHAGWATI PLASTO WORKS PVT.LTD., A.YR . 2007 - 08 3 7. KEEPING IN VIEW THE CBDT INSTRUCTI ON NO.5 OF 2014 DATED 10.07. 2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1061, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NO T HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS OF HON BLE PUNJAB & HARYANA HIGH COURT : - 1. CIT V OSCAR LABORATORIES P.LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 3. CIT V VARINDER CONSTRUCTI ON CO. (2011) 331 ITR 449 (P&H)(FB) 8. SIMILARLY, THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO .128/2008, ORDER DATED 03.03.2011 BY FOLLOWING THE EARLIER ORDER DATED 02.08.2010 IN ITA NO.179/1991 IN THE CASE OF CIT DELHI - III V. M/S.P.S.JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 9. FROM THE RATIO LAID DOWN BY THE HON BLE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CB DT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO.5/14 DATED 10.07.2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS.4.00 LAKHS. ACCORDINGLY, WITHOUT GOING INTO MERIT OF THE CASE, WE DISMISS THIS APPEAL OF THE DEPARTMENT ON ACCOUNT OF TAX EFFECT BEING LESS THAN RS.4.00 L AKHS. 10. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. O RDER PRONOUNCE D IN THE OPEN COURT ON 28 .01.2015. SD/ - SD/ - [ GEORGE MATHAN ] [ N.K.SAINI ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 28 .01.2015. R.G.(.P.S.) ITA NO.419/KOL/2011 M/S. BHAGWATI PLASTO WORKS PVT.LTD., A.YR . 2007 - 08 4 COPY OF THE ORDER FORWARDED TO: 1 . M/S. BHAGWATI PLASTO WORKS PVT.LTD., 8/1, LAL BAZAR STREET, 1 ST FLOOR, ROOM NO.11, KOLKATA - 1. 2 I.T.O., WARD - 5(3 ), KOLKATA. 3 . CIT(A) - VI , KOLKATA 4. CIT - KOLKATA CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES