ACIT, Circle-1(2), Kolkata, Kolkata V. Shri Kanungo Saurav Mohanty, Rajarhat

ITA 479/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6173 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 10-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NAVI
• Keywords: Tax effect

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 479/KOL/2017 ASSESSMENT YEARS: 2013-14 ASSISTANT COMMISSIONER OF INCOME-TAX (IT), CIRCLE-1(2), KOLKATA. VS. SHRI KANUNGO SAURAV MOHANTY (PAN: APFPM6669F) APPELLANT RESPONDENT DATE OF HEARING 18.07.2018 DATE OF PRONOUNCEMENT 18.07.2018 FOR THE APPELLANT SHRI SALLONG YADEN, ADDL. CIT, SR . DR FOR THE RESPONDENT SHRI NAGESWAR RAO, ADVOCATE & SH RI NAVIN JAIN, FCA ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A)-22, KOLKATA DATED 18.01.2017 FOR AY 2013-14. 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL OF REVENU E IS AGAINST THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION OF RS.47,60,872/- BY NOT TREATING THE SAME AS PART OF THE TOTAL INCOME. 3. AT THE OUTSET, THE LD. AR OF THE ASSESSEE SUBMIT TED THAT THE APPEAL PREFERRED BY THE REVENUE IS HIT BY THE NEW CIRCULAR OF THE CBDT I.E. CIRCULAR NO. 3/2018 DATED 11.07.2018 WHEREIN THE CBDT HAS DIRECTED THE DEPARTMENT TO WIT HDRAW/NOT PRESS THE APPEAL IF THE TAX EFFECT IS LESS THAN RS. 20 LACS BEFORE THE ITAT. HO WEVER, TAKING NOTE OF THE CBDT CIRCULAR NO. 3/2018 DATED 11.07.2018 WHEREBY THE MONETARY LI MITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE SUPREME COURT HAVE BEEN INCREASED AS MEASURE FOR RE DUCING LITIGATION. THE REVISED 2 ITA NO.1046/KOL/2015 M/S. MAA BHAGWTI COKE (GUJRAT) PVT. LTD, AY 2012-1 3 2 MONETARY LIMITS LAID DOWN IN PARA-3 OF THIS CIRCULA R AND THE MANNER OF COMPUTING TAX EFFECT AS LAID DOWN IN PARA-4 OF THIS CIRCULAR ARE AS FOLL OWS: '3 . HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED I N CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: SL. NO. APPEALS/SL.P'S IN INCOME-TAX MATTERS M ONETARY LIMIT (IN RS) 1. BEFORE APPELLATE TRIBUNAL 20,00,000/- 2. BEFORE HIGH COURT 50,00,000/- 3. BEFORE SUPREME COURT 1,00,00,000/- IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUC H TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEA L IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'DISPUTED ISSUES). FURTHER, 'TAX EFFECT' SHALL B E TAX INCLUDING APPLICABLE SURCHARGE AND CESS. HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THER EON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST I S THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST S HALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. ' 4. IN PARA-13 OF THE SAID CIRCULAR IT HAS FURTHER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RELEVANT PAR A-13 OF THE CIRCULAR READS THUS: '13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS 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 SP ECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. 5. IN THE PRESENT CASE, THE TAX EFFECT IN THIS APP EAL BY THE REVENUE IS LESS THAN RS.20,00,000/-. THOUGH THIS APPEAL HAD BEEN FILED B Y THE REVENUE ON 10.03.2012 AND WAS WITHIN THE MONETARY LIMIT IN THE FORM OF TAX EFFECT FOR FILING APPEALS BEFORE TRIBUNAL, IN VIEW OF PARA-13 OF THE CIRCULAR OF CBDT, EVEN SUCH APPEA LS WILL BE GOVERNED BY THE NEW MONETARY LIMITS LAID DOWN IN THE CBDT CIRCULAR NO.3 /2018 REFERRED TO ABOVE. 6. IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED B Y CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX COURT IN TH E CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATION LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID 3 ITA NO.1046/KOL/2015 M/S. MAA BHAGWTI COKE (GUJRAT) PVT. LTD, AY 2012-1 3 3 DOWN THAT WHEN A CIRCULAR ISSUED BY THE BOARD REMAI NS IN OPERATION THEN THE REVENUE IS BOUND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATIO N HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT CIRCULAR NO.3 DATED 11. 07.2018. 7. IN THE EVENT, THE REVENUE FINDS AT A LATER POIN T OF TIME THAT THE TAX EFFECT IN THE APPEAL IS MORE THAN RS.20 LAKHS OR DESPITE LOW TAX EFFECT THE APPEAL OF THE REVENUE IS MAINTAINABLE, THE REVENUE IS AT LIBERTY TO MOVE THI S TRIBUNAL FOR RECALLING OF THIS ORDER. 8. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL FI LED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CONTRARY TO TH E POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPARTMENT IS DISMI SSED IN LIMINE. 9. IN THE RESULT, THE APPEAL BY THE REVENUE IS DIS MISSED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- [ DR. A. L. SAINI] [A.T. VARKEY] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18TH JULY, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ACIT (IT), CIRCLE-1(2), KOLKATA. 2 RESPONDENT SHRI KANUNGO SAURAV MOHANTY, PLOT NO . 8, MAR TOWER-B, 7 TH FLOOR, DLF, IT PARK, IBM, RAJARHAT-700 156. 3. THE CIT(A) -22, KOLKATA. (SENT THROUGH E-MAIL) 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY