THE ACIT, 3(1), Bhopal V. Dr. J.P. Paliwal, Bhopal

ITA 939/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5758 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 22-03-2017
• Assessment Year: 1995-1996
• Appeal Filed On: 12-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Unexplained investment; Tax effect

Judgement Text

ACIT VS. DR. JP PALIWAL ITA NOS. 939 & 940/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NOS. 939 & 940/IND/2016 ASSESSMENT YEARS: 1995-96 & 1996-97 ASSTT. COMMISSIONER OF INCOME TAX 3(1), BHOPAL :: /APPELLANT VS DR. J.P. PALIWAL BHOPAL PAN ABEPP9484C :: / RESPONDENT / REVENUE BY SHRI MOHD. JAVED - DR !' / ASSESSEE BY NONE # $ '% DATE OF HEARING 22.3.2017 &'()* '% DATE OF PRONOUNCEMENT 2 3 .3.2017 / O R D E R PER BENCH THESE APPEALS HAVE BEEN FILED BY THE REVENUE AGAINS T CONSOLIDATED ORDER OF THE LEARNED CIT(A)-II, BHOPAL , DATED 30.6.2016 IN FIRST APPEAL NOS. CIT(A)-2/BHOPAL-307/2009-10 AN D CIT(A)- ACIT VS. DR. JP PALIWAL ITA NOS. 939 & 940/IND/2016 2 2/BHOPAL-308/2009-10 FOR THE ASSESSMENT YEARS 1995- 96 AND 1996-97, RESPECTIVELY. 3. WHEN THE CASE WAS CALLED FOR HEARING, NEITHER TH E RESPONDENT ASSESSEE NOR HIS REPRESENTATIVE APPEARED NOR THERE IS ANY APPLICATION FOR ADJOURNMENT. HOWEVER, ON PERUSAL OF APPEAL RECORD, WE FIND IT APPROPRIATE TO DECIDE THE APPEAL S AFTER HEARING THE LEARNED DR AND THUS WE PROCEED ACCORDINGLY. 4. AT THE VERY OUTSET, THE LEARNED DR DREW OUR ATTE NTION TOWARDS PARA 5 OF BOARD CIRCULAR NO. 21/2015 DATED 10.12.20 15 AND SUBMITTED THAT THE ORDER OF THE LEARNED CIT(A)-II, BHOPAL, DATED 18.3.2010 HAS BEEN PASSED DISPOSING OF TWO APPEALS OF THE ASSESSEE AND HENCE THE SAME IS A CONSOLIDATED ORDER FOR THE ASSESSMENT YEARS 1995-96 AND 1996-97. THE LEARNED DR, THEREFO RE, SUBMITTED THAT IN VIEW OF PARA 5 OF THE BOARD CIRCULAR (SUPRA ), THESE APPEALS CANNOT BE DISMISSED ON ACCOUNT OF MONETARY LIMIT EN HANCED BY THE CIRCULAR DATED 10.12.2015 (SUPRA). 5. ON CAREFUL CONSIDERATION OF THE ABOVE SUBMISSION S, FOR THE SAKE OF COMPLETENESS AND CLARIFY IN OUR FINDINGS, P ARA 5 OF THE BOARD CIRCULAR DATED 10.12.2015 (SUPRA) IS REPRODUC ED HEREUNDER :- ACIT VS. DR. JP PALIWAL ITA NOS. 939 & 940/IND/2016 3 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX E FFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE T HAN 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 MONETARY LIMIT S PECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF A N ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN OTHER WO RDS, HENCEFORTH, APPEALS CAN BE FILED ONLY WITH REFERENC E TO THE TAX EFFECT 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 ASSESS MENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBE D MONETARY LIMITS IN ANY OF THE YEAR(S), IF IT IS DECIDED TO F ILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEED S THE MONETARY LIMIT PRESCRIBED. IN CASE WHERE A COMPOSIT E ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASS ESSEE SHALL BE DEALT WITH SEPARATELY. 6. ON CAREFUL CONSIDERATION OF THE ABOVE, IN OUR HU MBLE UNDERSTANDING, THE INTENTION OF THE BOARD CIRCULAR AS PER SECOND LIMB OF PARA 5 IS THAT IN A CASE OF COMPOSITE ORDER OF ANY HON'BLE HIGH COURT OR APPELLATE AUTHORITY INCLUDING THE LEA RNED CIT(A), WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND CO MMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, THEN THE APPEAL(S ) SHALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEARS IF IT IS DE CIDED BY THE REVENUE TO FILE APPEAL BEFORE THE TRIBUNAL IN RESPE CT OF THE YEAR IN ACIT VS. DR. JP PALIWAL ITA NOS. 939 & 940/IND/2016 4 WHICH TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRI BED, EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIM IT IN ANY OF THE OTHER YEAR(S). IN OUR CONSIDERED OPINION, THE DIREC TIONS CONTAINED IN PARA 5 OF THE CIRCULAR PROVIDE THAT IN A CASE OF CO MPOSITE ORDER BY ANY APPELLATE AUTHORITY INCLUDING THE LEARNED CIT(A ), WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND IF THE REVENUE DE CIDES TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH THE TAX E FFECT EXCEEDS THE PRESCRIBED MONETARY LIMIT THEN THE APPEALS SHALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMIT IN ANY OF THE OTHER YEAR( S), WHICH IS ALSO ARISING FROM SUCH COMPOSITE ORDER. 7. IN VIEW OF THE ABOVE, FOR APPLICATION OF DIRECTI ONS CONTAINED IN PARA 5 OF THE CIRCULAR (SUPRA), IT IS NECESSARY THA T THE TAX EFFECT SHOULD EXCEED THE MONETARY LIMIT PRESCRIBED IN ATLE AST ONE APPEAL AND IF THE REVENUE DECIDES TO FILE THE APPEAL FOR T HAT YEAR WHEREIN THE TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBE D THEN THE APPEALS SHALL BE FILED IN RESPECT OF ALL SUCH ASSES SMENT YEARS DESPITE THE FACT THAT TAX EFFECT IS LESS THAN THE P RESCRIBED MONETARY LIMIT IN ANY OF THE OTHER YEAR(S). IN THE PRESENT CASE, ADMITTEDLY AND UNDISPUTEDLY THE LEARNED CIT(A)-II, BHOPAL HAS PASS ED A COMPOSITE ACIT VS. DR. JP PALIWAL ITA NOS. 939 & 940/IND/2016 5 ORDER FOR THE ASSESSMENT YEARS 1995-96 AND 1996-97 AND THE REVENUE BY FILING THESE APPEALS HAS AGITATED THE IS SUE OF DELETION OF ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CO NSTRUCTION OF HOTEL BUILDING OF RS.29,01,680/- AND RS.28,50,550/- FOR THE ASSESSMENT YEARS 1995-96 AND 1996-97, RESPECTIVELY AND THE LEARNED DR COULD NOT CONTROVERT HIS FACT THAT THE T AX EFFECT IN BOTH THE APPEALS IS LESS THAN THE PRESCRIBED MONETARY LI MIT PROVIDED BY THE BOARD CIRCULAR DATED 10.12.2015 (SUPRA). THUS, WE ARE INCLINED TO HOLD THAT THE TAX EFFECT IN BOTH THE APPEALS IS LESS THAN THE PRESCRIBED MONETARY LIMIT AND THERE IS NO APPEAL WH EREIN THE TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED BY THE BOARD CIRCULAR (SUPRA) WHICH IS ARISING FROM THE IMPUGNED COMPOSIT E ORDER OF THE LEARNED CIT(A). THEREFORE, IN OUR CONSIDERED OPINIO N, THE DIRECTIONS CONTAINED IN PARA 5 OF THE BOARD CIRCULAR (SUPRA) D O NOT APPLY TO THE PRESENT APPEALS AND, THEREFORE, WE DECLINE TO A CCEPT THE CONTENTION OF THE LEARNED DR PLACED ON THE STRENGTH OF PARA 5 OF THE BOARD CIRCULAR, AS REPRODUCED HEREINABOVE. 8. WE HAVE HEARD BOTH THE SIDES. WE FIND THAT THE CBDT VIDE CIRCULAR NO. 21/20145 ISSUED ON 10.12.2015 HAS REVI SED THE MONETARY LIMIT FOR FILING OF APPEAL BEFORE ITAT FIX ING THE TAX EFFECT ACIT VS. DR. JP PALIWAL ITA NOS. 939 & 940/IND/2016 6 LIMIT AT RS.10 LACS. WE FIND THAT THE TAX EFFECT I NVOLVED IN THE PRESENT APPEALS IS BELOW THE MONETARY LIMIT, THEREF ORE, WE DISMISS THESE DEPARTMENTAL APPEALS IN LIMINE BEING NOT MAINTAINABLE. 3. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 23 RD MARCH, 2017. SD/- SD/- % (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MARCH 23RD, 2017. DN/