ACIT, V. M/s R.A.Himatsinghka & Co.,

ITA 97/PAT/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9544 (ITAT-PATNA)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 06-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY KUMAR
• Assessee Lawyers: S C SANNIGRAHI
• Keywords: Retrospective amendment; Tax effect
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA , JM ITA NO. 97 /PAT./2016 : ASSTT. YEAR : 2008 - 09 ITA NO. 98 /PAT./2016 : ASSTT. YEAR : 2009 - 10 ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 5 , PATNA VS M/S R. A. HIMMATSINGKA & CO., PLOT NO. C - 1, PATLIPUTRA INDUSTRIAL ESTATE, PATNA (APPELLANT) (RESPONDENT) PAN NO. A AGFR0634R ASSESSEE BY : SH. S. C. SANNIGRAHI, ADV. REVENUE BY : S H. ABHAY KUMAR , SR. DR DATE OF HEARING : 15 .03 .201 8 DATE OF PRONOUNCEMENT : 15 . 0 3 .201 8 ORDER THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED AGAINST THE SEPARATE ORDER S EACH DATED 24.06 .2016 OF LD. CIT(A) - 2 , PATNA . 2. SINCE, THE AP PEALS RELATE TO THE SAME ASSESSEE WHICH WERE HEARD TOGETHER , SO , THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STAT ED THAT THE TAX EFFECT IN EACH OF THESE APPEALS IS LESS THAN RS.10,00,000/ - , THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONTAINED IN SECTION 268A OF THE INCOME TAX ACT, 1961 ( HEREINAFTER TO BE REFERRED AS THE ACT). 3. ON THE OTHER HAND, THE LD. D.R., ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THIS FACT THAT TAX EFFECT IN EACH OF THESE APPEALS IS LESS THAN RS.10,00,000/ - . ITA NOS. 97 & 98 /PAT. /201 6 R. A. HIMMATSINGKA & CO. 2 4. AFTER CONSIDERI NG THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL AVAILABLE ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/99. THE SAID SECTION 268 OF THE ACT PROVIDES THAT THE BOARD MAY ISS UE INSTRUCTION OR DIRECTIONS TO THE OTHER INCOME - TAX AUTHORITIES FIXING MONETARY LIMITS FOR NOT FILING THE APPEALS BEFORE THE APPELLATE TRIBUNAL OR THE COURTS, SAID INSTRUCTIONS/DIRECTIONS ARE BINDING ON THE INCOME TAX AUTHORITIES. 6 . IT IS NOTICED THAT T HE CBDT HAS ISSUED CIRCULAR NO.21 OF 2015 DATED 10.12.2015, VIDE WHICH IT HAS REVISED THE MONETARY LIMIT TO RS.10,00,000/ - FOR NOT FILING THE APPEAL BEFORE THE TRIBUNAL. THE RELEVANT PORTION OF THE SAID CIRCULAR READS AS UNDER: .. ... 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S. NO APPEALS IN INCOME - TAX MATTER MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/ - 2 BEFORE HIGH COURT 20,00, 000/ - 3 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 CASE. ITA NOS. 97 & 98 /PAT. /201 6 R. A. HIMMATSINGKA & CO. 3 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE SHALL NOT 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 & 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 GOVERNED BY THE LIMITS SPECI FIED IN PARA 3 ABOVE AND DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BE LOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 7 . FROM CLAUSE 10 OF THE ABOVE SAID CIRC ULAR IT IS CLEAR THAT THESE INSTRUCTIONS ARE APPLICABLE TO THE PENDING APPEALS ALSO AND AS PER CLAUSE 3, THERE IS CLEAR CUT INSTRUCTION TO THE DEPARTMENT TO WITHDRAW OR NOT TO PRESS THE APPEALS FILED BEFORE THE ITAT WHEREIN TAX EFFECT IS LESS THAN RS.10,00 ,000/ - . THESE INSTRUCTIONS ARE OPERATIVE RETROSPECTIVELY TO THE PENDING APPEALS. 8. KEEPING IN VIEW THE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12.2015 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, WE ARE OF THE VIEW THAT THE REVENUE SHOUL D NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. 9 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, THE APPEAL S FILED BY THE DEPARTMENT ARE DISMISSED. ITA NOS. 97 & 98 /PAT. /201 6 R. A. HIMMATSINGKA & CO. 4 10 . IN THE RESULT, THE APPEALS OF THE DEPARTMENT ARE DISMISSED. (ORDER PRONOUN CED IN THE COURT ON 15 /0 3 /2018) SD/ - S D/ - (SUDHANSHU SRIVASTAVA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DAT ED: 15 /03 /2018 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: I TAT ASSISTANT REGISTRAR