ITO, JHALAWAR V. SMT. SHAKUNTALA JAIN, JHALAWAR

ITA 831/JPR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1559 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 29-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL; ROSHANTA MEENA
• Assessee Lawyers: C M BIRLA
• Keywords: Audit objection; Tax effect
• Section: 260A; 12A

Judgement Text

1 ITA 831(5) IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH : A JAIPUR. BEFORE SHRI B.R. MITTAL AND SHRI B.R. JAIN ITA NOS. 831 TO 835/JP/2012 ASSTT. YEARS : 1999-2000, 2000-01, 02-03, 04-05 & 05-06. THE INCOME-TAX OFFICER, VS. SMT. SHAKUNTALA JAIN, JHALAWAR. PROP. M/S. NAKODA CRUSHERS & ENGINEERS, RALAYTI DIST. JHALAWAR. (APPELLANT) (RESPONDENT) APPELLANT BY : MS ROSHANTA MEENA & SHRI AK KHANDELWAL RESPONDENT BY : SHRI C.M. BIRLA DATE OF HEARING : 23.01.2013. DATE OF PRONOUNCEMENT : 23.01.2013 ORDER PER BENCH : THE DEPARTMENT HAS FILED THESE APPEALS FOR ASSESSME NT YEARS 1999-2000, 2000-01, 02- 03, 04-05 & 05-06 RESPECTIVELY AGAINST ORDERS DATED 29.08.2012, 3 0.08.2012 OF LD CIT(A), KOTA. 2. AT THE OUTSET, IT WAS INFORMED BY LD A.R. THAT T AX EFFECT IN THESE APPEALS ARE BELOW THE PRESCRIBED MONETARY LIMITS FOR FILING OF APPEALS BE FORE ITAT AND OTHER SUPERIOR COURTS AND PLACED RELIANCE ON CBDT INSTRUCTION NO.3 OF 2011 ISSUED ON 9.2.2011. LD D.R. HAS NOT DISPUTED THE ABOVE CONTENTION OF LD A.R. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF LD REPRESE NTATIVES OF PARTIES AND CBDT INSTRUCTION NO.3 OF 2011 ISSUED ON 9.2.2011. THE R ELEVANT CIRCULAR ISSUED BY CBDT READS AS UNDER: 2 INSTRUCTION NO.3/2011(F:NO.279/MISC.142/2007-ITJ) DT.9.2.2011 REFERENCE IS INVITED TO BOARDS INSTRUCTION NO. 5/2008 DATED 15-5-2008 WHEREIN MONETARY LIMITS AND OTHER CONDITIONS FOR FILING DEPARTMENTAL APPEALS (IN INCO ME-TAX MATTERS) BEFORE APPELLATE TRIBUNAL, HIGH COU RTS AND SUPREME COURT WERE SPECIFIED. 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEAL S MAY BE FILED ON MERITS BEFORE APPELLATE TRIBUNAL, HIGH COURTS AND SUPREME COURT KEEPING IN VIEW THE MONETA RY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH APPEALS SHALL NOT BE FILED IN CASES W HERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LI MITS GIVEN HEREUNDER: S. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS.) 1. APPEAL BEFORE APPELLATE TRIBUNAL 3,00,000 2. APPEAL U/S 260A BEFORE HIGH COURT 10,00,000 3. APPEAL BEFORE SUPREME COURT 25,00,000 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 CAS E 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AN D 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 INTEN DED TO BE FILED (HEREINAFTER REFERRED TO AS DISPUT ED ISSUES). HOWEVER THE TAX WILL NOT INCLUDE ANY INTE REST THEREON, EXCEPT WHERE CHARGEABILITY OF INTERES T ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTERES T IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTERES T SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS RED UCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD IN CLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENA LTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PEN ALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAI NST. 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EF FECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPEC T OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARI SE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL, CAN BE FILED IN R ESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH TH E TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS TH E MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHA LL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMI T SPECIFIED IN PARA 3. IN OTHER WORDS, HENCEFORTH, AP PEALS CAN BE FILED ONLY WITH REFERENCE TO THE TAX E FFECT IN THE RELEVANT ASSESSMENT 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, APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFECT IS LESS T HAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S), I F IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YE AR(S) IN WHICH TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESC RIBED. IN CASE WHERE A COMPOSITE ORDER/JUDGMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHAL L BE DEALT WITH SEPARATELY. 6. IN A CASE WHERE APPEAL BEFORE A TRIBUNAL OR A CO URT IS NOT FILED ONLY ON ACCOUNT OF THE TAX EFFECT BEING LESS THAN THE MONETARY LIMIT SPECIFIED ABOVE, THE C OMMISSIONER OF INCOME-TAX SHALL SPECIFICALLY RECORD THAT EVEN THOUGH THE DECISION IS NOT ACCEPTABLE, APPEAL IS NOT BEING FILED ONLY ON THE CONSIDERATION THAT THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN THIS INSTRUCTION. FURTHER, IN SUCH CASES, THERE W ILL BE NO PRESUMPTION THAT THE INCOME-TAX DEPARTMENT HAS ACQU IESCED IN THE DECISION ON THE DISPUTED ISSUES. THE INCOME-TAX DEPARTMENT SHALL NOT BE PRECLUDED FROM F ILING 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 ANY OTHER ASSESSMENT YEAR, IF THE TAX EFFECT EXCEEDS TH E SPECIFIED MONETARY LIMITS. 3 7. 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 THE DEPARTMENT HAS IMPLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN T HE CASE OF THE ASSESSEE FOR ANY OTHER ASSESSMENT YE AR OR IN THE CASE OF ANY OTHER ASSESSEE FOR THE SAME OR A NY OTHER ASSESSMENT YEAR, BY NOT FILING AN APPEAL O N THE SAME DISPUTED ISSUES. THE DEPARTMENTAL REPRESENTATI VES/COUNSELS MUST MAKE EVERY 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 F OR THE REASON OF THE TAX EFFECT BEING LESS THAN THE SPECIF IED MONETARY LIMIT AND, THEREFORE, NO INFERENCE SHO ULD BE DRAWN THAT THE DECISIONS RENDERED THEREIN WERE ACCE PTABLE TO THE DEPARTMENT. ACCORDINGLY, THEY SHOULD IMPRESS UPON THE TRIBUNAL OR THE COURT THAT SUCH CA SES DO NOT HAVE ANY PRECEDENT VALUE. AS THE EVIDENC E OF NOT FILING APPEAL DUE TO THIS INSTRUCTION MAY HAVE TO BE PRODUCED IN COURTS, THE JUDICIAL FOLDERS IN T HE OFFICE OF CSIT MUST BE MAINTAINED IN A SYSTEMIC MANNER FOR EASY RETRIEVAL. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSU ES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING TH AT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY L IMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT. (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VI RES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS B EEN ACCEPTED BY THE DEPARTMENT. 9. THE PROPOSAL FOR FILING SPECIAL LEAVE PETITION U NDER ARTICLE 136 OF THE CONSTITUTION BEFORE THE SUP REME COURT SHOULD, IN ALL CASES, BE SENT TO THE DIRECTOR ATE OF INCOME-TAX (LEGAL & RESEARCH), NEW DELHI AND THE DECISION TO FILE SPECIAL LEAVE PETITION SHALL BE IN CONSULTATION WITH THE MINISTRY OF LAW AND JUSTICE. 10. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE S HALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTE RS OTHER THAN INCOME-TAX, FILING OF APPEALS IN OTHER D IRECT TAX MATTERS SHALL CONTINUE TO BE GOVERNED BY RELEVANT PROVISIONS OF STATUTE AND RULES. FURTHER, FILING OF APPEAL IN CASES OF INCOME-TAX, WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUCH AS THE CASE OF REGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT, 1961, SHALL NOT BE GOVER NED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AND DEC ISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 11. THIS INSTRUCTION WILL APPLY TO APPEALS FILED ON OR AFTER 9TH FEBRUARY 2011 . HOWEVER, THE CASES WHERE APPEALS HAVE BEEN FILED BEFORE 9TH FEBRUARY 2011 WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJE CT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 12. THIS ISSUES UNDER SECTION 268A(1) OF THE INCOME -TAX ACT, 1961. 5. SINCE THESE APPEALS HAVE BEEN FILED BY DEPARTMEN T ON 29.10.2012, THE ABOVE INSTRUCTIONS OF CBDT ARE APPLICABLE AND THE APPEALS FILED BY DEP ARTMENT ARE LIABLE TO BE DISMISSED AS THE TAX EFFECT IN ALL THE APPEALS IS BELOW RS.3 LAKHS. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 23.01 .2013. SD/- SD/- ( B.R. JAIN ) ( B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, DATED : 23/01/2013. 4 D/- COPY FORWARDED TO :- THE ITO JHALAWAR. SMT. SHANKUNTALA JAIN, JHALAWAR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 831(5)/JP/2012) BY ORDER, AR ITAT JAIPUR.