D.C.I.T CC - XXV,kolkata, Kolkata V. Sri Jugal Kajaria (HUF), Howrah

ITSSA 42/KOL/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1531 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-01-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 10-04-2013
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI N.V.VASUDEVAN, JM & SHRI M.BALAGANESH , AM ] IT(SS)A NO. &A.Y. REVENUE/REP. BY VS ASSESSEE/PAN/REP. BY 42/KOL/2013 AY. 2007-08 DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) SHRI JUGAL KAJARIA (HUF), AAEHJ5909D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH-711403. C.O.64/K/2013 A/O.IT(SS)NO. 42/KOL/2013 AY. 2007-08 SHRI JUGAL KAJARIA (HUF), AAEHJ5909D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH-711403. DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) 46/KOL/2013 AY. 2004-05 DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) SHRI JUGAL KAJARIA (INDV.), AHPPK8324D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH-711403. C.O.79/K/2013 A/O.IT(SS) NO.46/KOL/2013 AY. 2004-05 SHRI JUGAL KAJARIA (INDV.), AHPPK8324D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH- 711403. DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) 47/KOL/2013 AY. 2005-06 DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) SHRI JUGAL KAJARIA (INDV.), AHPPK8324D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH-711403. C.O.80/K/2013 A/O.IT(SS) NO.47/KOL/2013 AY. 2005-06 SHRI JUGAL KAJARIA (INDV.), AHPPK8324D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH- 711403. DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) 48/KOL/2013 AY. 2006-07 DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) SHRI JUGAL KAJARIA (INDV.), AHPPK8324D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH-711403. C.O.81/K/2013 A/O.IT(SS) NO.48/KOL/2013 AY. 2006-07 SHRI JUGAL KAJARIA (INDV.), AHPPK8324D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH- 711403. DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) 49/KOL/2013 AY. 2007-08 DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) SHRI JUGAL KAJARIA (INDV.), AHPPK8324D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH-711403. 2 2 C.O.82/K/2013 A/O.IT(SS) NO.49/KOL/2013 AY. 2007-08 SHRI JUGAL KAJARIA (INDV.), AHPPK8324D REP. BY SHRI A.K.TIBREWAL, FCA & SHRI AMIT AGARWAL, DUPLEX NO.2A, VIVINE VALLY LAKE LAND COUNTRY CLUB CAMPUS, P.O. MUNSHIDANGA, DIST:- HOWRAH- 711403. DCIT, CENTRAL CIRCLE-XXV, KOLKATA REP. BY SHRI NIRAJ KUMAR, CIT(DR) DATE OF HEARING: 21.01.2016 DATE OF PRONOUNCEMENT: 21.01.2016 ORDER PER BENCH THESE APPEALS OF THE REVENUE ARE AGAINST DIFFERENT ORDERS OF THE CIT(A) AGAINST THE ORDERS OF ASSESSMENT FRAMED U/S 153C/144/153A/143(3) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) IN THE CASE OF ASSESSEE F OR DIFFERENT ASSESSMENT YEARS AS SET OUT IN THE CAUSE TITLE ABOVE. 2. RECENTLY THE CBDT HAS ISSUED CIRCULAR NO. 2 1/2015, DATED 10TH DECEMBER, 2015, WHEREBY THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DE PARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE SUPREME COU RT HAVE BEEN INCREASED AS MEASURE FOR REDUCING LITIGATION. THE REVISED MONETARY LIMITS LAID DOWN IN PARA-3 OF THIS CIRCULAR AND THE MANNER OF COMPUTING TAX EFFECT AS LAID DOWN IN PARA -4 OF THIS CIRCULAR ARE AS FOLLOWS: 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED I N CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: - SL. NO. APPEALS IN INCOME-TAX MATTERS 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 APP EAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABL E HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST W HICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'DISPUTED ISSUES'). HOW EVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITS ELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON 3 3 DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 3. IN PARA-10 OF THE SAID CIRCULAR IT HAS FURTHER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RELEVANT PARA-10 O F THE CIRCULAR READS THUS: 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEA LS BELOW 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. 4. IN THE APPEALS FILED BY THE REVENUE, LISTED IN THE CAUSE TITLE TO THIS ORDER, THE TAX EFFECT IS LESS THAN RS.10,00,000/-. THOUGH THESE APPEALS HAV E BEEN FILED BY THE REVENUE PRIOR TO THE CBDT CIRCULAR NO. 21/2015 AND WERE WITHIN THE MONET ARY LIMIT IN THE FORM OF TAX EFFECT FOR FILING APPEALS BEFORE TRIBUNAL AT THE TIME OF FILIN G OF THE APPEALS, IN VIEW OF PARA-10 OF THE CIRCULAR OF CBDT, EVEN SUCH APPEALS WILL BE GOVERNE D BY THE NEW MONETARY LIMITS LAID DOWN IN THE CBDT CIRCULAR NO.21/2015 REFERRED TO ABOVE AND ARE LIABLE TO DISMISSED AS CONTRARY TO THE CBDT CIRCULAR AND ARE LIABLE TO BE DISMISSED IN LIMINE, AS UNADMITTED. 5. IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX COURT IN THE CA SE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATION LTD. REPORTED IN 267 ITR 272 WHEREI N THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THAT WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPER ATION THEN THE REVENUE IS BOUND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. TH E APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT CIRCULAR NO.21 DATED 10.12.2015. 5.1. IN THE EVENT THE REVENUE FINDS AT A LATER POIN T OF TIME THAT THE TAX EFFECT IN ANY OF THESE APPEALS ARE/IS MORE THAN RS.10 LAKHS OR DESPITE LOW TAX EFFECT ANY APPEAL OF THE REVENUE IS MAINTAINABLE, THE REVENUE IS AT LIBERTY TO MOVE THI S TRIBUNAL FOR RECALL OF THIS ORDER. 5.2. SINCE REVENUES APPEALS IN IT(SS)A NO.42/KOL/ 2013 & IT(SS)NOS.46-49/KOL/2013 REFERRED TO IN THE CAUSE TITLE OF THIS ORDER, ARE B EING DISMISSED AS UNADMITTED, THE C.OS. FILED BY THE ASSESSEE IN THE AFORESAID APPEALS, WHICH ARE PU RELY SUPPORTIVE IN NATURE I.E., CO NOS.64&79- 82/KOL/2013 ARE ALSO DISMISSED AS INFRUCTUOUS. 4 4 6. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEALS F ILED BY THE DEPARTMENT, AGAINST THE IMPUGNED ORDERS OF THE LD. CIT(A), ARE CONTRARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEALS FILED BY THE DEPARTMENT ARE DISMIS SED IN LIMINE . 7. IN THE RESULT, ALL THE APPEALS BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (M.BALAGANESH) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED : 21 ST JANUARY, 2016. RG. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2 RESPONDENT 3. THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .