DCIT, Nashik V. Shri Madhavrao Tulshiram Patil, Nashik

ITA 782/PUN/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66964 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-10-2012
• Assessment Year: misc
• Appeal Filed On: 02-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA
• Keywords: Rectification of order; Question of law; Tax effect
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 782/PN/2009 (ASSESSMENT YEAR : 2001-02) DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1, NASHIK . APPELLANT VS. SHRI MADHAVRAO T. PATIL SHESHADRI KULKARNI COLONY SHARANPUR ROAD NASHIK PAN : AHBPP1178J . RESPONDENT APPELLANT BY : MR. MUKESH VERMA RESPONDENT BY : MR. NIKHIL PATHAK DATE OF HEARING : 05-04-2013 DATE OF PRONOUNCEMENT : 30-04-2013 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATE D 15.04.2009 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 09.03.2006 PAS SED BY THE ASSESSING OFFICER, UNDER SECTION 153A R.W.S. 143(3) OF THE IN COME TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2001-02. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL :- 1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION M ADE BY THE AO AT RS. 4,44,000/- TOWARDS UNDISCLOSED INCOME ON SALE O F PLOT AT SURVEY NO.659/3/2 ON SUBSTANTIVE BASIS AND RS. 4,44,000/- ON PROTECTIVE BASIS IN VIEW OF THE FACT THAT THE ADDITION OF RS. 4,44,000/- ON SUBSTANTIVE BASIS IN THE CASE OF THE ASSESSEES SON, SHRI AVINASH MADHAVRAO PATIL HAS ALSO BEEN DELETED. ITA NO. 782/PN/2009 SHRI MADHAVRAO T. PATIL A.Y. 2001-02 2) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THAT THE LD. CIT(A) WAS JUSTIFIED IN DELETING BOTH THE ADDIT IONS ON SUBSTANTIVE AS WELL AS PROTECTIVE BASIS INSTEAD OF CONFIRMING THE ADDIT ION ON SUBSTANTIVE BASIS. 2. AT THE OUTSET, THE LEARNED REPRESENTATIVE FOR TH E RESPONDENT ASSESSEE SUBMITTED THAT THE CAPTIONED APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED AS THE TAX-EFFECT WAS LESS THAN RS. 3 LACS, IN VIEW OF THE CBDT INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011 IN TERMS OF WHICH THE RE VISED MONETARY LIMIT FOR FILING OF AN APPEAL BEFORE THE TRIBUNAL IS RS. 3 LA CS. THE LEARNED COUNSEL FURTHER EXPLAINED THAT THE DISPUTE RAISED IN THE AF ORESAID GROUNDS OF APPEAL IS WITH REGARD TO SUBSTANTIVE ADDITION OF RS. 4,44,000 /- AND A FURTHER PROTECTIVE OF ADDITION OF RS. 4,44,000/- MADE BY THE ASSESSING OF FICER, WHICH HAS SINCE BEEN DELETED BY THE CIT(A). IT WAS POINTED OUT THAT EVEN IF THE TAX-EFFECT OF BOTH THE ADDITIONS IS TAKEN TOGETHER, YET THE SAME IS BELOW THE PRESCRIBED MONETARY LIMIT OF RS. 3 LACS FOR FILING OF AN APPEA L BEFORE THE TRIBUNAL AS PER THE CBDT INSTRUCTION NO. 3 OF 2011 (SUPRA). 3. THE AFORESAID FACTUAL ASSERTION OF THE RESPONDEN T ASSESSEE HAS NOT BEEN CONTESTED BY THE LEARNED CIT(DR), SO HOWEVER A CCORDING TO THE LEARNED CIT(DR) THE CAPTIONED APPEAL WAS FILED BY THE DEPAR TMENT ON 02.07.2009 AND THUS THE CBDT INSTRUCTION NO. 3 OF 2011 (SUPRA) PRO VIDING THE REVISED MONETARY LIMIT WAS NOT APPLICABLE. IN THIS CONNECTI ON, THE LEARNED CIT(DR) HAS REFERRED TO A COMMUNICATION OF THE DIRECTOR OF INCO ME TAX (LEGAL AND RESEARCH)-1, DELHI DATED 02.09.2011 POINTING OUT TH AT AS PER THE INSTRUCTION NO. 3 OF 2011(SUPRA) THE REVISED MONETARY LIMIT OF RS. 3 LACS FOR FILING OF AN APPEAL BEFORE THE TRIBUNAL WAS APPLICABLE ONLY FOR THE APPEALS FILED ON OR AFTER 09.02.2011 I.E. THE DATE OF ISSUE OF THE INSTRUCTIO N. ACCORDING TO THE LEARNED CIT(DR), THE APPEAL FILED EARLIER WOULD BE GOVERNED BY THE OLD INSTRUCTIONS PREVAILING AT THE TIME OF FILING OF AN APPEAL AND I N THE PRESENT CASE THE CBDT INSTRUCTION NO. 5 OF 2008 15.08.2008 WOULD BE APPLI CABLE, WHICH PROVIDED FOR FILING OF APPEALS BEFORE THE TRIBUNAL IN CASES WHER E THE TAX-EFFECT WAS MORE ITA NO. 782/PN/2009 SHRI MADHAVRAO T. PATIL A.Y. 2001-02 THAN RS. 2 LACS. IN THE PRESENT CASE, THE TAX-EFFEC T WAS MORE THAN RS. 2 LACS AND THEREFORE THE APPEAL WAS JUSTIFIABLY FILED ON 0 2.07.2009 AND ACCORDING TO THE LEARNED CIT(DR) THE REVISED MONETARY LIMIT OF R S. 3 LACS PROVIDED IN THE CBDT INSTRUCTION NO. 3 OF 2011 (SUPRA) IS NOT APPLI CABLE. 4. IN RESPONSE, THE LEARNED REPRESENTATIVE FOR THE RESPONDENT ASSESSEE POINTED OUT THAT THE REVISED MONETARY LIMIT FOR FIL ING OF AN APPEAL BEFORE THE TRIBUNAL OF RS. 3 LACS PROVIDED BY THE CBDT INSTRUC TION NO. 3 OF 2011 (SUPRA) WOULD BE APPLICABLE TO ALL THE PENDING APPEALS AND SUCH A VIEW HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL BOMBAY HIGH CO URT IN THE CASE OF CIT VS. M/S SEVAK PHARMA PVT. LTD. IN ITA (L) NO. 396 OF 20 13 DATED 22.03.2013, A COPY OF THE SAID JUDGEMENT HAS BEEN PLACED ON RECOR D. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. FACTUALLY SPEAKING, IT IS NOT IN DISPUTE THAT THE TAX-EFFECT INVOLVED I N THE DISPUTE RAISED BY THE REVENUE IN THIS APPEAL IS LESS THAN RS. 3 LACS AND IN TERMS OF THE CBDT INSTRUCTION NO. 3 OF 2011 (SUPRA) THE CAPTIONED APP EAL COULD NOT HAVE BEEN FILED BY THE REVENUE. THE MONETARY LIMIT FOR FILING OF AN APPEAL BEFORE THE TRIBUNAL PRESCRIBED BY INSTRUCTION NO. 3 OF 2011 (S UPRA) IS RS. 3 LACS. HOWEVER, THE APPEAL WAS FILED ON 02.07.2009 I.E. PR IOR TO THE DATE OF ISSUANCE OF INSTRUCTION NO. 3 OF 2011 (SUPRA) AND THEREFORE, ACCORDING TO THE REVENUE THE REVISED MONETARY LIMIT FOR FILING OF AN APPEAL TO THE TRIBUNAL PROVIDED BY THE CBDT INSTRUCTION NO. 3 OF 2011 (SUPRA) IS NOT APPLI CABLE. 6. WE FIND THAT IN THE CASE OF SEVAK PHARMA PVT. LT D (SUPRA) HONBLE HIGH COURT WAS CONSIDERING A QUESTION AS TO WHETHER THE INSTRUCTION NO. 3 OF 2011 (SUPRA) SHALL APPLY TO PENDING APPEALS OR NOT. THE HONBLE HIGH COURT AFTER CONSIDERING THE JUDGEMENT OF THE HONBLE SUPREME CO URT IN THE CASE OF CIT VS. SURYA HERBAL LTD. DATED 29.08.2011 UPHELD T HE ORDER OF THE TRIBUNAL DISMISSING THE APPEALS OF THE REVENUE BY APPLYING T HE REVISED MONETARY LIMITS CONTAINED IN INSTRUCTION NO. 3 OF 2011 (SUPRA) EVEN WHEN THE APPEAL WAS FILED ITA NO. 782/PN/2009 SHRI MADHAVRAO T. PATIL A.Y. 2001-02 BY THE REVENUE PRIOR TO THE DATE OF ISSUANCE OF INS TRUCTION NO. 3 OF 2011 (SUPRA). THE FOLLOWING DISCUSSION IN THE JUDGEMENT IS WORTHY OF NOTICE :- 2) ON 18.11.2011, THE TRIBUNAL DISMISSED THE REVEN UES APPEAL HAVING AS THE TAX EFFECT WAS LESS THAN RS. 3 LACS. THIS WAS IN VIEW OF THE CBDT INSTRUCTIONS NO. 3/2011 DATED 9/2/2011 WHICH H AD REVISED THE MONETARY LIMIT FOR FILING AN APPEAL TO TRIBUNAL TO RS. 3 LAK HS. THE TRIBUNAL FOLLOWED THE DECISION OF THIS COURT IN THE MATTER OF CIT VS. MAD HUKAR INAMDAR (HUF) REPORTED IN 318 ITR 149 WHEREIN IT HAS BEEN HELD TH AT CBDT INSTRUCTIONS FIXING MONETARY LIMIT FOR FILING AN APPEAL TO TRIBUNAL, WO ULD APPLY EVEN TO THE PENDING CASES. 3) THE REVENUE THEREAFTER MOVED A MISC. APPLICATION FOR RECTIFICATION OF ORDER DATED 18/11/2011 BEFORE THE TRIBUNAL. THIS APPLICABLE FOR RECTIFICATION WAS ON THE BASIS OF THE SUPREME COURT DECISION IN THE MATTER OF CIT VS. SURYA HERBAL LTD. RENDERED ON 29/8/2011 WHE REIN IT HAS BEEN HELD THAT CBDT INSTRUCTIONS NO. 3/2011 WOULD NOT APPLY IPSO F ACTO. THE APEX COURT HELD THAT ABOVE INSTRUCTIONS WOULD NOT APPLY WHERE THE MATTER HAS CASCADING EFFECT OR RAISES A COMMON PRINCIPLE INVOLVING A LAR GE NUMBER OF MATTERS. THE TRIBUNAL DISMISSED THE MISC. APPLICATION FOR RECTIF ICATION BY THE IMPUGNED ORDER DATED 5/10/2012 BY RELYING UPON THE DECISION OF THIS COURT IN THE MATTER OF MADHUKAR INAMDAR (HUF) (SUPRA). 4) THE GRIEVANCE OF THE REVENUE IS THAT THE TRIBUNA L OUGHT TO HAVE ENTERTAINED THE APPEAL BY FOLLOWING THE DECISI ON OF THE APEX COURT IN THE MATTER OF SURYA HERBAL LTD. (SUPRA). HOWEVER, THE R EVENUE HAS NOT BEEN ABLE TO POINT OUT BEFORE US ANY OF CIRCUMSTANCES AS LAID DOWN BY THE SUPREME COURT IN THE MATTER OF SURYA HERBAL LTD. (SUPRA) BE ING APPLICABLE TO THIS CASE WHICH WOULD LEAD TO NON APPLICATION OF CBDT INSTRUC TION NO. 3/2011. 5) IN THE ABOVE CIRCUMSTANCES, WE SEE NO REASON TO ENTERTAIN THE PROPOSED QUESTION OF LAW. 7. FOLLOWING THE RATIO OF THE JUDGEMENT OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S SEVAK PHARMA PVT. LTD. (SU PRA) IT HAS TO BE CONCLUDED THAT THE MONETARY LIMIT FOR FILING OF AN APPEAL TO THE TRIBUNAL LAID DOWN IN INSTRUCTION NO. 3 OF 2011 (SUPRA) WOULD BE APPLICAB LE TO THE PENDING APPEALS ITA NO. 782/PN/2009 SHRI MADHAVRAO T. PATIL A.Y. 2001-02 ALSO AND ACCORDINGLY THE CAPTIONED APPEAL OF THE RE VENUE, THOUGH FILED PRIOR TO THE ISSUANCE OF INSTRUCTION NO. 3 OF 2011 (SUPRA ), IS LIABLE TO DISMISSED AS NON-MAINTAINABLE AS THE TAX-EFFECT IN THE GROUNDS R AISED BY THE REVENUE IS BELOW RS. 3 LACS. I.E. THE MONETARY LIMIT FOR FILIN G OF AN APPEAL BEFORE THE TRIBUNAL PRESCRIBED IN INSTRUCTION NO. 3 OF 2011 (S UPRA). 8. ACCORDINGLY, THE CAPTIONED APPEAL OF THE REVENUE IS DISMISSED, WITHOUT GOING INTO MERITS OF THE DISPUTE. 9. RESULTANTLY, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 30 TH APRIL, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, NASHIK; 4) THE CIT, NASHIK; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY I.T.A.T., PUNE