DCIT, Trichur V. M/s/E.T.Devassy &Sons,

ITA 535/COCH/2013

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9442 (ITAT-COCHIN)
• Duration Of Justice: 5 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-06-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 10-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE
• Assessee Lawyers: JOSE KAPPEN
• Keywords: Audit objection; Retrospective amendment; Tax effect; Set aside
• Section: 143(3); 142(1); 153A; 115JB; 205; 68; 69; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFOR E S/ SHRI CHANDRA POOJARI , AM & GEORGE GEORGE K., J M I .T . A. NO S . 539 TO 543 / CO CH/ 2013 ASSESSMENT YEAR S : 2002 - 03 TO 2006 - 07 THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, THRISSUR. . VS. M/S. NEW KERALA INVESTMENTS, ANNAMANADA, PALAYAMPARAMBU P.O., THRISSUR - 680 741. [PAN: AAEFN 0017C] (REVENUE - APPELLANT) (ASSESSEE - RESPONDENT) I .T.A. NOS. 532 TO 535/COCH/2013 ASSESSMENT YEARS : 2002 - 03 TO 2005 - 06 THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, THRISSUR. . VS. E.T. DEVASSY & SONS, EDASSERY JEWELLERS, R.S. ROAD, CHALAKUDY , THRISSUR - 680 697. [PAN: AABFE 0977B (REVENUE - APPELLANT) (ASSESSEE - RESPONDENT) I .T.A. NOS.525 TO 529/COCH/2013 ASSESSMENT YEARS : 2002 - 03 TO 2006 - 07 THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, THRISSUR. . VS. ST, FRANCIS CLAY WORKS, PALAYAMPARAMBU P.O., THRISSUR - 680 307. [PAN: AAFLS 1105M] (REVENUE - APPELLANT) (ASSESSEE - RESPONDENT) I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 2 I .T.A. NOS. 594 TO 597/COCH/2013 ASSESSMENT YEARS : 2002 - 03 TO 2005 - 06 THE DEPUTY COMMISSI ONER OF INCOME - TAX, CENTRAL CIRCLE, THRISSUR. . VS. M/S. EDASS E RY CERAMICS, PALAYAMPARAMBU P.O., THRISSUR - 680 741. [PAN: AAAFE 9254G] (REVENUE - APPELLANT) (ASSESSEE - RESPONDENT) I .T.A. NOS. 587 TO 589/COCH/2013 ASSESSMENT YEAR S : 2004 - 05 TO 2006 - 07 THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, THRISSUR. . VS. M/S. ST. FRANCIS CLAY DCOR TILES, THEKK U MURI , CHERUVALOOR P.O., THRISSUR - 680 321. [PAN: ABKFS 6632H] (REVENUE - APPELLANT) (ASSESSEE - RESPONDENT) REVENUE BY SHRI SHANTAM BOSE, CIT(DR) DR ASSESSEE BY SHRI JOSE KAPPEN, CA D ATE OF HEARING 26 /0 6 /2019 DATE OF PRONOUNCEMENT 26 / 0 6 /201 9 O R D E R PER CHANDRA POOJAR I, AM: BRIEF FACTS OF THE CASE ARE THAT A SEARCH U /S , 132 OF THE INCOME TAX ACT WAS CONDUCTED ON 26 . 03.2008 IN THE PREMISES OF THE FIRMS AND IN THE RESIDENCE OF THE PARTNERS OF E T DEVASSY GROUP. I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 3 2.1 CONSEQUENT TO THE SEARCH THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 1 53A OF THE INCOME TAX ACT FOR THE ASST. YEARS 2002 - 03 TO 2007 - 08 AND ISSUED NOTICE UNDER SECTION 142(1) FOR THE ASSESSMENT YEAR 2008 - 09. 2.2 THE ASSESSEES FILED RETURN OF INCOME AND THE ASSESSING OFFICER C OMPLETED THE ASSESS MENT U NDER S ECTION 153A VIDE ORDER DATED 29.12.2009 IN RESPECT OF THE ASST . YEARS 2002 - 03 TO 2007 - 08 AND U /S . 143(3) IN RESPECT OF ASST. YEAR 2008 - 09 IN RESPECT OF THE FOLLOWING 84 CASES IN INSPECT O F 13 ASSESE E S. 1 . M/S NEW K E RALA INVESTMENTS ( ASST YEAR S 2002 - 03 TO 2008 - 09) 2. M/S E T D E VASSY & SONS, EDASS ER Y (ASST YEARS 2002 - 03 TO 2008 - 09) 3. ST. FRANCIS TILE INDUSTRIES ( ASST YEARS 2007 - 08 TO 2008 - 09) 4. ST. FRANCIS CLAY DECOR TILES (ASS T YEARS 2004 - 05 TO2008 - 09) 5. ST. FRANCIS C L AY WORKS (ASST YEAR S 2002 - 03 TO 2008 - 09) 6. ED ASSERY CERAMICS (ASST YEARS 2002 - 03 TO 2008 - 09) 7. E.T . DEVASSY (ASS T YEARS 2002 - 03 T O 2008 - 09 ) 8. E .D . JAISON (ASST YEARS 2002 - 03 TO 2008 - 09) 9. E .D . SABU ASST YEAR S 2002 - 03 TO 2008 - 09 ) 10. E.D BENNY (ASST YEARS 2002 - 03 TO 2008 - 09) 1 I. K .D LILLY (ASST YEAR S 2002 - 0 3 TO 2008 - 09 12. E.D . SHAJU (ASST YEAR S 2002 - 03 TO 2008 - 09) 13 .E. D . SALU (ASST YEAR S 2002 - 03 TO 2008 - 09) 2.3 AGAINST THE ABOVE ORDERS , APPEALS WERE FILED BY THE ASS E SS EES BEFORE THE CIT (A), KOCHI. THE COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED THE APPEAL, BY ACCEPTING FRESH/ NEW EVIDENCES. AGAINST THE ORDER OF THE CIT(A), DEPARTMENT FILED 84 APPEALS BEFORE THE TRIBUNAL. THE RESPONDENTS ALSO FILED CROSS OBJECT IONS BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE COMMON ORDER DATED 10.10.2014 DISMISSED THE ENTIRE APPEALS. I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 4 2.4 AGAINST THE ABOVE ORDER, THE DEPARTMENT AGAIN FILED APPEALS, BEFORE THE HON'BLE KERALA HIGH COURT. THE HON'BLE HIGH COURT VIDE JUDGMENT IN ITA 169/2015 DATED 17/08/2015 DECIDED THE CASE IN FAVOUR OF THE ASS E SSEES AND AGAINST THE DEPARTMENT . 2.5 SUBSEQUENTLY THE DEPARTMENT FILED A REVIEW PETITION BEFORE TH E HIGH COURT IN RESPECT OF 21 CASES OUT OF 84 CASES, MENTIONED BELOW, ON THE ONLY GROUND THAT QUESTIONS OF LAW REGARDING ' T HE APPRECIATION OF DOCUMENT S UNDER SEC.153A OF THE I.T. ACT ' WERE NOT CONSIDERED IN THE ABOVE ORDER. DETAILS OF CASES FOR WHICH DEPARTMENT FILED REVIEW PETITIONS ARE : SL NO. NAME OF ASSESSEES ASST. YEARS ITA NOS. 1. M/S. NEW KERALA INVESTMENTS 2002 - 03 TO 2006 - 07 169, 223,194, 2. M/S. E.T. DEVASSY AND SONS, EDASSERY JEWELLERS 2003 TO 2005 - 06 141,171,216, 110,103,150 3. M/S. ST. FRANCIS CLAY WORKS 2002 - 03 TO 200 6 - 07 134,222,211 4. M/S. EDASSERY CERAMICS 2002 - 03 TO 2005 - 06 240,210,148 5. M/S. ST. FRANCIS CLAY DCOR TILES 2004 - 05 TO 2006 - 07 234,193,104, 239 AND 157/2015 2.6 T HE HIGH C OURT ADMITTED THE REVIEW PETITION IN R.P. NO. 1123/2015 AND REMANDED BACK THE ABOVE 21 CASES OUT OF 84 CASES TO THE T RIBUNAL FOR FRESH CONSIDERATION, VIDE ORDER DATED 22.03.20 16, WI T H THE FOLLOWING OBSERVATION : I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 5 'THEREFORE WE SET ASIDE THE ORDER PASSED BY T HE TRIBUNAL IN THE ABOVE APPEALS AND REMAND THE CASES TO THE TRIBUNAL TO RE - CONSIDER THE QUESTION RAISED IN THESE APPEALS BY TAKING INTO ACCOUNT THE PRINCIPLES LAID DOWN IN TH E JUDGMENT CITED BY THE REVENUE AS WELL AS THE ASSESSEE OR ANY OTHER PRINCIPLES OF LAW LAID DOWN BY COMPETENT COURTS OF LAW AND TAKE A DECISION ON MERITS IN AC CORDANCE WITH LAW. THE QUESTION FRAMED IS ANS WER ED IN FAVOUR OF REVENUE TO THE EXTENT INDICATED A BOVE. HOWEVER WE MAKE IT CLEAR THAT THE COMMON QUESTION WITH REGARD TO THE POWER OF THE APPELLATE AUTHORITY WITH RESPECT TO RECEIPT OF EVIDENCE IN APPEAL AND ITS APPLICATION CONCLUDED BY THE TRIBUNAL IN 84 CASES AND UPHELD BY THIS COURT, WILL REMAIN UNDIST URBED' 2.7 NOW THE ABOVE REFERRED 21 APPEALS WERE ONCE AGAIN HEARD BEFORE THE TRIBUNAL. 3 . AT THE TIME OF HEARING, THE LD. AR SUBMITTED THAT THE TAX EFFECT IN ALL THESE APPEALS IS LESS THAN RS.20 LAKHS AS FOLLOWS: DETAILS O F DISPUTED INCOME AND DISPUTED TAX TH E DEPUT Y CO MMI SS I O N E R OF IN CO M E TAX V S M I S NEW KERAL A INVE S TMENTS C E N T RAL C IR C L E A N N A M A N A D A , P A LA Y A MP ARA M B U P . O THR I SS U R T HRI SS U R 680 741 741 680 741 741 539 TO 543/COCH/2013 (APPELLAN T) (RESPONDENT) A B C D E F G R S . R S . R S . R S. R S . R S. INC O M E T A X O N X TAX ON R E TURN E D (AS ASSESSE D R ET URN E D PER IN C OM E INCOM E(AS P ER IN CO M E(A S PER TAX ON ASS E SS MENT ASSESS ED ( A S P E R DISPUTED A SSESS M E NT SC H E DUL E D DISPUTED A SS T Y EA R ORDER ) A SSESS M E NT ORD E R ) INCOME ORD E R ) IN C OM E TA X) INCOME A B C (C - B) E F (E - F) 2002 - 0 3 17 , 380 29 , 99 , 025 29,81,645 10 , 70 , 6 5 2 6 , 205 10,64,447 2003 - 0 4 65 , 1 3 0 3 8 , 1 3 , 954 37 , 48,824 14 , 01 , 628 23 , 3 6 6 13,78,262 I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 6 2004 - 05 1 , 0 3 , 0 10 47 , 5 3 , 6 5 8 46,50,648 17 , 05 , 2 7 5 36 , 9 5 5 16 , 68,320 2 0 05 - 06 1 , 41 , 1 55 47 , 18 , 0 3 1 45 , 76,876 17 , 26 , 444 5 1 , 65 1 16 , 74,793 2 0 06 - 0 7 8 , 1 0 , 71 0 66 , 9 1 , 429 58 , 80 , 719 22 , 5 2 , 33 2 2 , 7 2 , 88 5 19,79,447 THE D E PUT Y CO MMI S SION E R O F IN CO M E TAX V S M /S. E T DEVA SS Y & SONS CENTRAL C IR C LE EDASSERY JEWELLERS THRISS UR R S RO A D , C H A L AK U D Y T HRI SS UR 6 8 0 69 7 532 TO 535 /COCH/2013 (AP P E LLANT) (RESPONDENT) A B C D E F G R S. R S . R S. R S . R S . R S . IN CO M E TAX O N R ET URN E D (A S ASSESSE D TAX O N RETURNED P E R I NCOME IN C OM E(AS P ER INC O M E(AS P E R TAX ON ASSESS M E N T ASS E SS ED ( AS P E R DI S PUTED ASSESS M ENT SC H E DUL E D DISPUTED ASS T Y E AR ORD E R ) A SS E SS M ENT O R D ER ) INCOME O R D ER) IN CO M E TAX) INCOME A B C (C - B) E F (E - F) 2 002 - 03 1 5 , 342 2 1 , 99 , 1 25 21 , 83 , 783 7 , 85 , 088 5,504 7 , 79 , 584 2 003 - 04 20 , 289 26 , 52 , 14 5 26 , 31 , 856 9 , 7 4 , 66 3 7,279 9 , 67,384 200 4 - 05 33 , 044 3 1 , 98,485 31 , 65,441 11 , 4 7 , 45 6 11,854 11,35 , 602 2005 - 0 6 39 , 370 3 8 , 5 7 , 3 7 3 38 , 18 , 003 1 4. 1 1 , 50 9 14,40 8 13 , 97 , 101 I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 7 TH E DEPUT Y CO MMI SS I O N E R OF IN CO M E TAX V S M/S. ST.FRANCIS CLAY WORKS, C E N T RAL C IR C L E P A LA Y A MP ARA M B U P . O THR I SS U R T HRI SS U R 6 8 0 3 07 307 NOS.525 TO 529/2013 (APPELLANT) (RESPONDENT) A B C D E F G R S . R S . R S . R S. R S . R S. INC O M E T A X O N R E TURN E D (AS ASSESSE D TAX O N R ET URN E D PER IN C OM E INCOM E(AS P ER IN CO M E(A S PER TAX ON ASS E SS MENT ASSESS ED ( A S P E R DISPUTED A SSESS M E NT SC H E DUL E D DISPUTED A SS T Y EA R ORDER ) A SSESS M E NT ORD E R ) INCOME ORD E R ) IN C OM E TA X) INCOME A B C (C - B) E F (E - F) 2002 - 0 3 13 , 335 1,81,113 1,67,778 64,658 4,784 59,874 2003 - 0 4 14,292 1,94,1 11 1,79,819 71,336 5,127 66,209 2004 - 05 24,276 3,29,712 3,05,436 1,18,284 8,709 1,09,575 2 0 05 - 06 88,625 12,03,687 11,15,062 4,31,822 32,430 3,00,392 2 0 06 - 0 7 1,64,636 22,36,053 20,71,417 7,52,654 55,418 6,97,236 TH E DEPUT Y CO MMI SS I O N E R OF IN CO M E TAX V S M/S. EDASSERY CERAMICS C E N T RAL C IR C L E P A LA Y A MP ARA M B U P . O THR I SS U R T HRI SS U R 68 0 7 4 1 741 594 TO 597/COCH/2013 (APPELLANT) (RESPONDENT) A B C D E F G R S . R S . R S . R S. R S . R S. INC O M E T A X O N R E TUR N E D (AS ASSESSE D TAX O N R ET URN E D PER IN C OM E INCOM E(AS P ER IN CO M E(A S PER TAX ON ASS E SS MENT ASSESS ED ( A S P E R DISPUTED A SSESS M E NT SC H E DUL E D DISPUTED A SS T Y EA R ORDER ) A SSESS M E NT ORD E R ) INCOME ORD E R ) IN C OM E TA X) INCOME A B C (C - B ) E F (E - F) 2002 - 0 3 8,245 1,92,320 1,84,075 68,658 2,976 65,682 2003 - 0 4 26,639 6,21,373 5,94,734 2,28,354 9,556 2,18,798 I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 8 2004 - 05 14,945 3,48,603 3,33,658 1,25,061 5,361 1,19,700 2 0 05 - 06 58,842 13,72,530 13,13,688 5,02,244 21,531 4,8 0,713 TH E DEPUT Y CO MMI SS I O N E R OF IN CO M E TAX V S M/S. ST. FRANCIS CLAY DCOR TILES C E N T RAL C IR C L E THEKKEMURI, CHERUVALLOOR P.O. THR I SS U R T HRI SS U R 6 8 0 321 321 587 TO 589/COCH/2013 (APPELLANT) (RESPONDENT) A B C D E F G R S . R S . R S . R S. R S . R S. INC O M E T A X O N R E TURN E D (AS ASSESSE D TAX O N R ET URN E D PER IN C OM E INCOM E(AS P ER IN CO M E(A S PER TAX ON ASS E SS MENT ASSESS ED ( A S P E R DISPUTED A SSESS M E NT SC H E DUL E D DISPUTED A SS T Y EA R ORDER ) A SSESS M E NT ORD E R ) INCOME ORD E R ) IN C OM E TA X) INCOME A B C (C - B) E F (E - F) 2004 - 05 19,631 7,03,143 6,83,512 2,52,253 7,043 2,45,210 2 0 05 - 06 27,715 9 ,92,696 9,64,981 3,63,253 9,410 3,53,843 2 0 06 - 0 7 4 8 ,261 17,28,612 Q 16,80,351 5,81,850 16,245 5,65,605 3. ACCORDINGLY, THE LD. AR PLACED RELIANCE ON THE CBDT CIRCULAR NO.3/2018 DATED 11/07/2018. HE SUBMITTED THAT THESE APPEALS ARE GOVERNED BY THE A B OVE CBDT CIRCULAR AND THE DEPARTMENT CANNOT FILE APPEALS BEFORE THIS TRIBUNAL AS THE TA X EFFECT IN THESE APPEALS IS LESS THAN RS.20 LAKHS. 3.1 THE LD. DR SUBMITTED THAT HE WANTS TO TAKE INSTRUCTIONS FROM THE CONCERNED CIT TO WITHDRAW THE APPEALS. I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 9 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IN OUR OPINION, THERE IS MERIT IN THE ARGUMENT OF THE LD. AR. WE DEEM IT APPROPRIATE TO FIRST REFER TO SECTION 2 68A OF THE INCOME TAX ACT, 1961 WHICH WAS INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/1999 WHICH READS AS UNDER: 268A (1) THE BOARD MAY, F ROM TIME TO TIME ISSUE ORDERS, INSTRUCTIONS 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 AUTHORITIES 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 REFERENCE 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 ASSESSEE FOR ANY OTHER ASSESSMENT YEA R , 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 THE ASSESSEE, BE ING 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 SU CH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRCUMSTANCE S UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NO FILED IN RESPECT OF ANY 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 - SECTION (2), (3) AND (4) SHALL APPLY ACCORDINGLY. I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 10 4.1 RELEVANT EXTRACTS ( PARAS 1 TO 13) FROM THE AFORESAID CBDT CIRCULAR NO. 3/2018 DATED 11/07/2018 IS ALSO REPRODUCED HEREUNDER FOR READY REFERENCE: SUBJE CT: REVISION OF MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE I NCOME TAX APPELLATE TRIBUNAL, HIGH COURTS AND LPS/APPEALS BEFORE SUPREME COURT - MEASURES FOR REDUCING LITIGATION - REG. REFERENCE IS INVITED TO BOARD'S CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 WHEREIN MONETARY LIMITS AND OTHER CONDITIONS FOR FILING DEPARTMENTAL APPEALS (IN INCOME - TAX MATTERS) BEFORE INCOME TAX APPELLATE TRIBUNAL, HIGH C O URTS AND SLPS/ APPEALS BEFORE SUPREME COURT WERE SPECIFIED. 2 . IN SUPERSESSION OF THE ABOVE CIRCULAR, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLPS/ APPEALS BEFORE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE T HE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S. NO. APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (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 HE 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 DIFFERENCE BETWEEN THE TAX ON THE TO T AL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINA FTER REFERRED TO AS 'DISPUTED ISSUES') . FURTHER, TAX EFFECT' SHALL BE TAX INCLUDING APPLICABLE SURCHARGE A ND CESS. HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 11 CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABI LITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL 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. 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFECT SEPARATELY FOR EVE RY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, I N THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETA RY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN OTHER WORDS, HENCEFORTH, APPEALS CAN BE FILED ONLY WITH REFERENCE T O THE TAX EFFECT IN THE RELEVANT ASSESSME NT YEAR. HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY, WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE, THAN ONE ASSESSMENT YEAR, APPEALS SHALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN I F THE TAX EFFECT IS LESS THAN T HE PRESCRIBED MONETARY LIMITS IN ANY OF THE Y EARS(S ) , I F IT IS DECIDED TO FILE A PPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEEDS T HE MONETARY LIMIT PRESCRIBED. IN CASES WHERE A COMPOSITE ORDER/ JUDGMENT INVOLVES MOR E THAN ONE ASSESSES, EACH ASSESSE SHALL BE DEALT WITH SEPARATELY, 6 . FURTHER, WHERE INCOME IS COMPUTED UNDER THE PROVISIONS OF SECTION 1 15J B OR SECTION 115JC, FOR THE PURPOSES OF DETERMINATION OF 'TAX EFFECT', TAX ON THE TOTAL INCOME ASSESSED SHALL BE CO MPUTED AS PER THE FOLLOWING FORMULA : - ( A B ) + (C D) WHERE, A = THE TOTAL INCOME ASSESSED AS PER THE PROVISIONS OTHER THAN THE PROVISIONS CONTAINED IN SECTION 115JB OR SECTION 115JC (HEREIN CALLED GENERAL PROVISIONS); B = THE TOTAL INCOME THAT W OULD HAVE BEEN CHARGEABLE HAD THE TOTAL INCOME ASSESSED AS PER THE GENERAL PROVISIONS BEEN REDUCED BY THE AMOUNT OF THE DISPUTED ISSUES UNDER GENERAL PROVISIONS; C = THE TOTAL INCOME ASSESSED AS PER THE PROVISIONS CONTAINED IN SECTION 115JB OR SECTION 115JC; I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 12 D = THE TOTAL INCOME TH AT WOULD HAVE BEEN CHARGEABLE HAD THE TOTAL INCOME ASSESSED AS PER THE PROVISIONS CONTAINED IN SECTION 115JB OR SECTION 115J C WAS REDUCED BY THE AMOUNT OF DISPUTED ISSUES UNDER THE SAID PROVISIONS: HOWEVER, WHERE THE AM OUNT OF DISPUTED ISSUES IS CONSIDERED BOTH UNDER THE PROVISIONS CONTAINED IN SECTION 11 5 JB OR SECTION 115JC AND UNDER GENERAL PROVISIONS, SUCH AMOUNT SHALL NOT HE REDUCED FROM TOTAL INCOME ASSESSED WHILE DETERMINING THE AMOUNT UNDER ITEM D. 7. IN A CASE W HERE APPEAL BEFORE A TRIBUNAL OR A COURT IS NOT FILED ONLY ON ACCOUNT OF THE TAX EFFECT BEING LESS THAN THE MONETARY LIMIT SPECIFIED ABOVE, THE PR. COMMISSIONER OF INCOME - TAX/ COMMISSIONER OF INCOME TAX SHALL SPECIFICALLY RECORD THAT 'EVEN THOUGH THE DECIS ION IS NOT ACCEPTABLE, APPEAL IS NOT BEING FILED ONLY ON THE CONSIDERATION THAT THE TAX EFFECT IS LESS THAN THE MONETARY LIMI T SPECIFIED IN THIS CIRCULAR'. FURTHER, IN SUCH CASES, THERE WILL BE NO PRESUMPTION THAT THE INCOME - TAX DEPARTMENT HAS ACQUIESCED I N THE DECISION ON THE DISPUTED ISSUES. THE INCOME - TAX DEPARTMENT SHALL NOT BE PRECLUDED FROM FILING AN APPEAL AGAINST THE DISPUTED ISSUES IN THE CASE OF THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR, OR IN THE CASE OF ANY OTHER ASSESSEE FOR THE SAME OR A NY OTHER ASSESSMENT YEAR, IF THE TAX EFFECT EXCEEDS THE SPECIFIED MONETARY LIMITS. 8. IN THE PAST, A NUMBER OF INSTANCES HAVE COME TO THE NOTICE OF THE BOARD, WHEREBY AN ASSESSEE HAS CLAIMED RELIEF FROM THE TRIBUNAL OR THE COURT ONLY ON THE GROUND THAT TH E DEPARTMENT HAS IMPLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN THE CASE OF THE ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR IN THE CASE OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR, BY NOT FILING AN APPEAL ON THE SAME DISPUTE D ISSUES. THE DEPARTMENTAL REPRESENTATIVES/COUNSELS MUST MAKE EVEN EFFORT TO BRING TO THE NOTICE OF THE TRIBUNAL OR THE COURT THAT THE APPEAL IN SUCH CASES WAS NOT FILED OR NOT ADMITTED ONLY FOR THE REASON OF THE TAX EFFECT BEING LESS THAN THE SPECIFIED MO NETARY LIMIT AND, THEREFORE, NO INFERENCE SHOULD BE DRAWN THAT THE DECISIONS RENDERED THEREIN WERE ACCEPTABLE TO THE DEPARTMENT ACCORDINGLY, THEY SHOULD IMPRESS UPON THE TRIBUNAL OR THE COURT THAT SUCH CASES DO NOT HAVE ANY PRECEDENT VALUE AND ALSO BRING T O THE NOTICE OF THE TRIBUNAL/ COURT THE PROVISIONS OF SUB SECTION (4) OF SECTION 268A OF THE INCOME - TAX ACT, 1961 WHICH READ AS UNDER : (4 ) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS O R 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. I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 13 9. AS THE EVIDENCE OF NOT FILING APPEAL DUE TO THIS CIRCULAR MAY HAVE TO BE PRODUCED IN CO URTS, THE JUDICIAL FOLDERS IN THE OFFICE OF PR.C S IT/ CSLT MUST BE MAINTAINED IN A SYSTEMIC MANNER FOR EAS Y RETRIEVAL. 10 . ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LES S THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHERE BOARD'S ORDER. NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD T O BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/ BANK ACCOUNTS. 11 . THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE SHALL NO T APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OTHER THAN INCOME TAX. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVERNED BY RELEVANT PROVISIONS OF STATUTE AND RULES. FURTHER, IN CASES WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUCH AS THE CASE OF REGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A/12AA OF THE IT ACT, 1901 ETC., FILING OF APPEAL SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AND DECISION TO FILE APPEALS IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 12. IT IS CLARIFIED THAT THE MONETARY LIMIT OF RS. 20 LAKHS FOR FILING APPEALS BEFORE THE I TAT WOULD APPLY EQUALLY TO CROSS OBJECTIONS UNDER SECTION 253(4 ) OF THE ACT. CROSS OBJECTIONS BELOW THIS, MONETARY LIMIT, ALREADY FIL ED, SHOULD BE PURS UED FOR DISMISSAL AS WITHDRAWN/ NOT PRESSED. FILING OF CROSS OBJECTIONS BELOW THE MONETARY LIMIT MAY NOT LIE CONSIDERED HENCEFORTH. SIMILARLY, REFERENCES TO HIGH COURTS AND SLPS/ APPEALS BEFORE SUPREME COURT BELOW THE MONETARY LIMIT OF RS. 50 LAKHS AND RS. 1 CR O RE RESPECTIVELY SHOULD BE PURSUED FOR DISMISSAL AS WITHDRAWN/NOT PRESSED. REFERENCES BEFORE HIGH C O URT AND APPEALS BELOW THESE LIMITS MAY NOT BE CONSIDERED HENCEFORTH. 13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS OBJECTIONS/RE FERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 14 PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. 4.2 WE HAVE SE EN THAT THE MONETARY LIMITS HAVE BEEN MADE APPLICABLE RETROSPECTIVELY BY THE CBDT IN THE SAID CIRCULAR AS WOULD BE EVIDENT FROM THE FOLLOWING EXTRACT: 13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES TO BE FILED HENCEFORTH IN SC/HC S/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. 4.3 WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR. THE L D. DR SUBMITTED THAT HE WANTS TO TAKE INSTRUCTIONS FROM THE CONCERNED CIT TO WITHDRAW THE APPEAL S . IN OUR CONSIDERED VIEW , THERE IS NO NECESSITY FOR ADJOURNING THE APPEALS AS THE TAX EFFECT INVOLVED IN THE PRESENT APPEALS OF THE REVENUE IS LESS THAN RS.20 LAKHS AND ACCORDINGLY, THE REQUEST FOR ADJOURNMENT IS REJECTED. 4.4 FURTHER, T HE LD. DR WAS NOT ABLE TO SHOW THAT THE CASES OF THE ASSESSEE S ARE GOVERNED BY ANY OF THE FOLLOWING EXCEPTIONS: 1) WHERE THE CONSTITUTIONAL VALIDITY OF THE AC T OR INCOME TAX RULES, 1962 IS UNDER CHALLENGE, OR. 2) WHERE THE CBDT ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR 3) WHERE THE REVENUE AUDIT OBJECTIONS IN THE CASE OF THE ASSESSEE HAS BEEN ACCEPTED BY THE DEPARTM ENT, OR 4) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS. I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 15 BEING SO, THE ASSESSEE S CASES ARE GOVERNED BY THE ABOVE CBDT CIRCULAR. HENCE , THE DEPARTMENT IS DISENTITLED TO FILE APPEALS BEFORE THE TRIBUNAL IN RESPECT OF THESE ASSE SSEES . HOWEVER, BY WAY OF AB UNDANT CAUTION, LIBERTY IS GRANTED TO THE REVENUE TO FILE MISCELLANEOUS PETITION IF THE ASSESSEE S CASES FALL UNDER ANY OF THE EXCEPTIONS MENTIONED ABOVE OR IF THE DEPARTMENT IS ABLE TO SHOW THAT THE TAX EFFECT IN THESE CASES IS MORE THAN RS.20 LAKHS AS PRESCRIBED IN ABOVE CBDT CIRCULAR. THUS, THE APPEALS OF THE REVENUE ARE DISMISSED. 5. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH JUNE , 2019 SD/ - SD/ - (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 26 TH JUNE , 2019 GJ COPY TO: 1 . M/S. NEW KERALA INVESTMENTS, ANAMMANADA, PALAYAMPARAMBU P.O., THRISSUR - 680 741. 2. E.T. DEVASSY & SONS, EDASSERY JEWELLERS, R.S. ROAD, CHALAKUDY , THRISSUR - 680 697. 3. M/S. EDASS E RY CERAMICS, PALAYAMPARAMBU P.O., THRISSUR - 680 741. 4. M/S. ST. FRANCIS CLAY DCOR TILES, THEKKUMURI, CHERUVALOOR P.O., THRISSUR - 680 321. 5. ST. FRANCIS CLAY WORKS, PALAYAMPARAMBU P.O., THRISSUR - 680 307. I.T.A. NO S . 539 - 543 /COCH/201 3, 532 - 535/COCH/2013 525 TO 529/COCH/2013 594 - 597/COCH/2013 & 587 - 589/COCH/2013 16 6 . THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRA L CIRCLE , THRISSUR. 7 . THE COMMISSIONER OF INCOME - TAX (AP P EALS) - V, KOCHI. 8 . THE COMMISSIONER OF INCOME - TAX, CENTRAL, KOCHI. 9 . D. R., I.T.A.T., COCHIN BENCH, COCHIN. 10 . GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN