ACIT, CC-XXIII, Kolkata, Kolkata V. M/s. B.S. Sponge (P) Ltd., Kolkata

ITSSA 2/KOL/2012

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1180 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 27-01-2012
• Court: TRIBUNAL
• Department Lawyers: RAJAT SUBHRA BISWAS
• Keywords: Audit objection; Tax effect
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T(SS).A NO.02/KOL/2012 ASSESSMENT YEAR: 2008-09 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. M/S. B. S. SPONGE (P) LTD. C.C.-XXIII, KOLKATA (PAN:AACCB0433H) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 29.10.2015 DATE OF PRONOUNCEMENT: 29.10.2015 FOR THE APPELLANT: SHRI RAJAT SUBHRA BISWAS, CIT, DR FOR THE RESPONDENT: SHRI SUBASH AGARWAL, ADVOCATE ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A), CENTRAL-III, KOLKATA IN APPEAL NO.89/CC-XXIII/CIT(A)C-III/10-11 DATED 14.11 .2011. ASSESSMENT WAS FRAMED BY ACIT, CENTRAL CIRCLE -XXIII, KOLKATA U/S. 153A R .W.S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASS ESSMENT YEAR 2008-09 VIDE HIS ORDER DATED 29.12.2010. 2. AT THE OUTSET, IT WAS NOTICED THAT TAX EFFECT IN THIS APPEAL IS BELOW THE PRESCRIBED MONETARY LIMITS FOR FILING OF APPEALS BEFORE ITAT A ND OTHER SUPERIOR COURTS. IT SEEMS THAT THE REVENUES APPEAL TAX EFFECT IS LESS THAN RS. 3 LAKHS AS THE QUANTUM UNDER DISPUTE IS RS.17,52,238/- ON WHICH TAX EFFECT IS RS.1,98,528/ -. THE ONLY ISSUE NOW REMAINS BEFORE US IS THAT THE APPEAL OF THE REVENUE IS BELOW THE P RESCRIBED LIMIT OF TAX EFFECT IN VIEW OF THE BOARDS INSTRUCTION ISSUED FROM TIME TO TIME RE VISING THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE ITAT AND OTHER SUP ERIOR COURTS. THE APPEAL RELATES TO ASSESSMENT YEAR 2008-09 AND FILED BEFORE THE TRIBUN AL ON 27-01-2012. SINCE THIS APPEAL FILED ON 27-01-2012, THE SAME WILL BE COVERED BY IN STRUCTION NO. 3/2011 ISSUED ON 09.02.2011 I.E. THE REVISED MONETARY LIMIT FOR FILI NG OF APPEAL BEFORE ITAT, WHEREBY THE CBDT HAS FIXED THE LIMIT OF RS. 3 LACS. HONBLE DEL HI HIGH COURT IN THE CASE OF CIT VS DELHI RACE CLUB IN ITA NO.128/2008 DATED 03.03.2011 HAS HELD AS UNDER: THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S.4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS, ARE NOT TO BE ENTERTAINED. 2 IT(SS)A NO.02/K/2012 M/S. B. S. SPONGE (P) LTD.. AY 2008-09 THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TA X-III V. M/S. P. S. JAIN AND CO. BEING ITA NO. 179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT , THE REVISED MONETARY LIMIT OF RS. 3 LACS AS PER INSTRUCTION NO.3/2011 WILL APPLY TO PEN DING APPEALS. 3. ON QUERY FROM THE BENCH, THE LD. DR COULD NOT PO INT OUT ANY OF THE EXCEPTIONS AS PROVIDED IN THE CIRCULAR AS UNDER: (A) THAT THIS IS A LOSS CASE HAVING TAX EFFECT MOR E THAN THE PRESCRIBED LIMIT, WHICH SHOULD BE TAKEN INTO ACCOUNT, (B) THAT THIS IS A COMPOSITE ORDER FOR MANY ASSESSM ENT YEARS WHERE TAX EFFECT WILL BE MORE THAN THE PRESCRIBED LIMIT AS PER PARA 5 OF ABOVE INSTRUCTIONS, (C) THAT THERE IS OTHER YEAR PENDING AS DISPUTED O N THE SINGULAR ISSUE, (D) THAT IN THE CASE OF REVENUE, WHERE CONSTITUTIO NAL VALIDITY OF THE PROVISIONS OF THE ACT OR I.T. RULES 1962 ARE UNDER CHALLENGE , (E) THAT BOARDS ORDER, NOTIFICATION, INSTRUCTION O R CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, (F) THAT REVENUE AUDIT OBJECTION IN THE CASE HAS BE EN ACCEPTED BY THE DEPARTMENT AND THE SAME IS UNDER CHALLENGE. THE LD. DR COULD NOT POINT OUT ANY OF THE EXCEPTION S AS PROVIDED ABOVE. ACCORDINGLY, THIS BEING A TAX EFFECT CASE, WE DISMISS THE APPEAL OF THE REVENUE IN LIMINE WITHOUT GOING INTO MERITS AND AS UNADMITTED. 4. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 5. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29TH OCTOBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ACIT, CC-XXIII, KOLKATA. 2 RESPONDENT M/S. B. S. SPONGE (P) LTD., 34A, METCA LFE STREET, KOLKATA- 700 013. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .