The ACIT,1(2), Indore V. M/s Choudhary Innovative Business P. Ltd., Indore

ITSSA 74/IND/2011

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7803 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 23-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KESHAVE SAXENA
• Assessee Lawyers: P D NAGAR
• Keywords: Depreciation; Tax effect
• Section: 260A; 68; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NOS.70 TO 76/IND/2011 A.YS. 2003-04 TO 2009-10 ASSTT. COMMISSIONER OF INCOME TAX 1(2), INDORE ... APPELLANT VS M/S. CHOUDHARY INNOVATIVE BUSINESS P. LTD., INDORE PAN AAACC 6659 E ... RESPONDENT AND, CROSS-OBJECTION NOS.60 TO 66/IND/2011 (ARISING OUT OF IT(SS)A NOS.70 TO 76/IND/2011) A.YS. 2003-04 TO 2009-10 M/S. CHOUDHARY INNOVATIVE BUSINESS P. LTD., INDORE PAN AAACC 6659 E ... APPELLANT VS. ASSTT. COMMISSIONER OF INCOME TAX 1(2), INDORE ... RESPONDENT 2 DEPARTMENT BY : SHRI KESHAVE SAXENA, CIT/DR ASSESSEE BY : SHRI P.D. NAGAR, CA DATE OF HEARING : 27.12.2011 DATE OF PRONOUNCEMENT : 03.01.2012 O R D E R PER BENCH AGGRIEVED BY THE DIFFERENT ORDERS DATED 26.7.2011 OF THE LD. CIT(A)-I, INDORE, THE REVENUE IS IN APPEAL FOR ASSESSMENT YEARS 2003-04 TO 2009-10 ON THE GROUNDS AS DETAILED IN THE GROUNDS OF THE RESPECTIVE APPEAL WHEREAS THE ASSESS EE HAS PREFERRED CROSS-OBJECTIONS FOR THE SAME ASSESSMENT YEARS. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE SHRI P.D. NAGAR POINTED OUT THAT THE TAX EFFECT IN THE R ESPECTIVE APPEAL, FILED BY THE REVENUE, IS BELOW PRESCRIBED M ONETARY LIMIT AND ON THE ISSUE OF MONETARY LIMIT, THE APPEA LS ARE COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF NATHULAL JAIN IN ITA NO.475/IND/2010 (A.Y. 2006-07), ORDER DATED 29.6.2011. THIS FACTUAL ASSERTION OF THE LEARNED COUNSEL FOR T HE ASSESSEE WAS NOT CONTROVERTED BY THE REVENUE. 3 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. IN VIEW OF THE ABOV E, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION OF THE A FORESAID ORDER DATED 29.6.2011: AGGRIEVED BY THE ORDER DATED 3 RD MARCH, 2010 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE I S IN APPEAL ON THE GROUND THAT LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN DELETING THE ADDITION OF RS. 7,85,000/- OUT OF T OTAL ADDITION OF RS. 8,85,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED LOAN CREDIT U/S 68 OF THE ACT WHEREAS THE ASSESSEE HAS FILED THE CROSS OBJECTION ON THE GROUND THAT LEARNED COMMISSIONER O F INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ACTIO N OF THE ASSESSING OFFICER IN RESPECT OF THE ADDITION OF RS. 1 LAC MAD E U/S 68 OF THE ACT WITHOUT CONSIDERING THE FACTS OF THE CASE AND SUBMI SSIONS MADE BEFORE HIM. 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL F OR ASSESSEE CONTENDED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE PRESCRIBED LIMIT, THEREFORE, THE APPEAL OF THE REVE NUE DESERVES TO BE DISMISSED ON THIS COUNT ITSELF BY FURTHER SUBMITTIN G THAT THE TAX EFFECT IS RS. 2,52,450/-, THEREFORE, NO APPEAL CAN BE FILE D BEFORE THE TRIBUNAL WHICH IS HAVING THE TAX EFFECT LESS THAN RS. 3 LACS . THIS FACTUAL MATRIX WAS FAIRLY CONSENTED BY THE LEARNED SR. DR BUT SUBM ITTED THAT THE CIRCULAR OF CBDT IS EFFECTIVE FROM A PARTICULAR DAT E, THEREFORE, THE SUBMISSION OF THE ASSESSEE IS NOT TENABLE. IN REPLY , THE LD. COUNSEL FOR ASSESSEE CONTENDED THAT IDENTICALLY THE HONBLE JUR ISDICTIONAL HIGH COURT HAS HELD THAT IT IS APPLICABLE TO THE APPEALS WHICH ARE PENDING BEFORE THE TRIBUNAL AND PLACED RELIANCE UPON THE DE CISION IN CIT V. ASHOK KUMAR MANIBHAI PATEL & COMPANY (2009) 317 ITR 386 (MP), ITO VS. M/S LAXMI JEWELS PRIVATE LIMITED (ITA NO. 2165/ MUM/2010). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON FILE. UNDISPUTEDLY, THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE PRESCRIBED MONETARY LIMIT IN FI LING THE APPEAL BEFORE THE TRIBUNAL. THEREFORE, WE ARE REPRODUCING HEREUND ER THE DECISION OF THE TRIBUNAL IN THE CASE OF RAJAN CLOTH STORES (ITA NO. 365/IND/2010) ORDER DATED 31.5.2011 :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, INDORE, DATED 4.3.2010 ON THE GROUND THAT THE LD. CIT(A) ER RED IN OVERLOOKING THE PROVISION OF SEC. 275(1A) OF I.T. ACT AND DELETING PENALTY U/S 271(1)(C) FOR RS.2,32,780/-. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I PRADEEP KUAMR MITRA, LD. SR. DR FOR THE REVENUE AND SHRI S.S. DES HPANDE, LD. COUNSEL FOR THE ASSESSEE. AT THE OUTSET, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE TAX 4 EFFECT IN THE PRESENT APPEAL IS BELOW PRESCRIBED MO NETARY LIMIT, THEREFORE, STRAIGHT WAY, THE APPEAL OF THE REVENUE MAY BE DISM ISSED. THE LD. SR. DR FAIRLY ADMITTED THAT THE TAX EFFECT IS BELOW PRESCRIBED MO NETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSION, ON THE ISSUE OF TAX EFFECT, THE BENCH I N THE CASE OF ACIT VS. M/S. SHRIRAM NUTRIENTS LTD. IN ITA NO.123/IND/2010 (A.Y. 2002-03) VIDE ORDER DATED 28.10.2010 HELD AS UNDER: THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER O F THE LEARNED CIT(A)- UJJAIN, DATED 16.12.2009 ON THE GROUND WHETHER IN T HE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) ERRED IN TREATING THE ASSES SMENT MADE BY THE A.O. AS INFRUCTUOUS, WITHOUT APPRECIATING THE FACT THAT OTH ERWISE ON 6.3.2006 (THE DATE OF ISSUE OF NOTICE) THE A.O. WAS EMPOWERED TO ISSUE NOTICE U/S 148 FOR THE A.Y. 2002-03, IN VIEW OF THE PROVISIONS OF SECTION 149(1 )(A) READ WITH SECTION 151(1) OF THE IT ACT, 1961? 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I S.S. DESHPANDE, LD. COUNSEL FOR THE ASSESSEE AND SHRI P.K. MITRA, LEARN ED SENIOR DR. THE CRUX OF ARGUMENT IS THAT THE TAX EFFECT IN THE PRESENT APPE AL IS BELOW MONETARY PRESCRIBED LIMIT, THEREFORE, STRAIGHT WAY THE APPEA L OF THE REVENUE MAY BE DISMISSED. THE LD. SR. DR SHRI P.K. MITRA FAIRLY AD MITTED THAT THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT APPEAL, THE INCOME ASSESSED IS RS.1,37,880/- AND THE TAX INVOLV ED IS RS.40,611/- ONLY, THEREFORE, WITHOUT GOING INTO MERITS OF THE CASE ON THE PRIMARY OBJECTION OF MONETARY LIMIT, THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OUR VIEW IS SUPPORTED BY THE DECISION OF THE TRIBUNAL IN HIM ANSHU FLOUR MILLS (ITA NO.506/IND/2009, ORDER DATED 26.5.2010). THE RELEVA NT PORTION OF THE SAME IS REPRODUCED HEREUNDER: THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 26.8.2009 ON THE GROUND THAT THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN DELETING THE ADDITIO N OF RS. 5,46,831/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON FIXED ASSETS AND ALSO IN DIRECTING THE ASSESSING OFFICER TO ALLOW CARRY FORWARD OF BROUGHT FORWARD LOSSES OF EARLIER YEARS. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD THE LEARNED COUNSELS FROM BOTH THE SIDES AND CONSIDERED THE ARGUMENTS ADVANCE D BY THEM. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE RAISED A P RELIMINARY OBJECTION THAT SINCE THE TAX EFFECT IS BELOW THE PRESCRIBED MONETA RY LIMIT, THEREFORE, THE DEPARTMENT IS NOT PERMITTED TO FILE THIS APPEAL AND THE SAME DESERVES TO BE DISMISSED ON THIS SHORT GROUND ITSELF. HOWEVER, THE LEARNED SR. DR FAIRLY AGREED THAT THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LI MIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE ASSERTION OF THE LEARNED RESPECTIVE COUNSELS, WE AR E OF THE CONSIDERED OPINION THAT THIS APPEAL OF THE REVENUE DESERVES TO BE DISM ISSED. OUR VIEW FINDS SUPPORT FROM THE DECISION DATED 2 ND DECEMBER, 2009 OF THE TRIBUNAL IN THE CASE OF HIMANSHU FLOOR MILLS (ITA NO. 507/IND/2009). TH E RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER :- 5 THIS APPEAL IS BY THE REVENUE CHALLENGING THE ORD ER OF THE CIT(A) DATED 26.8.2009. DURING HEARING OF THIS APPEAL, I HAVE H EARD SMT. APARNA KARAN, LEARNED SENIOR DR, AND NO-BODY WAS PRESENT FOR THE ASSESSEE . REGISTERED NOTICE OF HEARING WAS SENT TO THE ASSESSEE ON 11.11.2009. THE ASSESS EE NEITHER PRESENTED ITSELF NOR MOVED ANY APPLICATION FOR ADJOURNMENT, THEREFORE, I HAVE NO OPTION BUT TO PROCEED EX- PARTE QUA THE ASSESSEE AND DISPOSE OF THIS APPEAL O N THE BASIS OF MATERIAL AVAILABLE IN THE FILE. 2. THE FIRST GROUND RAISED IS THAT THE LEARNED FIRS T APPELLATE AUTHORITY ERRED IN DELETING THE ADDITION OF RS.4,26,936/- MADE ON ACCO UNT OF DISALLOWANCE OF DEPRECIATION ON THE FIXED ASSETS. ON QUESTIONING F ROM THE BENCH ABOUT THE TAX EFFECT, IT WAS FAIRLY POINTED OUT THAT THE TAX EFFECT IS BE LOW THE PRESCRIBED MONETARY LIMIT. I HAVE CONSIDERED THE SUBMISSIONS PUT-FORTH BY THE LE ARNED SENIOR DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 3. BRIEF FACTS ARE THAT THE ASSESSEE CLAIMED DEPREC IATION OF RS. 8,53,871/- ON THE FIXED ASSETS. THE LEARNED ASSESSING OFFICER BASED UPON THE COMMENTS OF THE AUDITORS IN THE NOTES TO ACCOUNTS AND THE NATURE OF THE BUSI NESS, DISALLOWED 50% OF THE DEPRECIATION CLAIMED BY THE ASSESSEE WHICH WAS WORK ED OUT AT RS.4,26,936/-. BEFORE THE LEARNED FIRST APPELLATE AUTHORITY THE SUBMISSIO N OF THE ASSESSEE WAS THAT THE FIXED ASSETS WERE DULY REFLECTED IN THE BALANCE SHEET DUR ING THE RELEVANT PERIOD AND THERE WAS NO NEW ADDITION IN THE ASSETS. THE DEPRECIATIO N ON ALL THE ASSETS WAS REGULARLY ALLOWED SINCE THE DATE OF INCLUSION IN THE BALANCE SHEET. EVEN IN THE IMPUGNED ORDER THERE IS A FACTUAL FINDING THAT THE ASSESSEE FROM T HE DATE OF INCLUSION HAS NOT SHOWN IN ADDITION TO THE BLOCK OF ASSETS AS THE WDV AS ON 31 .3.2002 WAS TAKEN AS BASIS AFTER REDUCING THE SALE OF SOME ASSETS FOR THE CALCULATIO N OF ALLOWABLE DEPRECIATION FOR THE ASSESSMENT YEAR 2003-04 AND THE ASSESSEE WAS ALLOWE D DEPRECIATION FOR THE ASSESSMENT YEAR 2002-03. THE REVENUE HAS NOT ADDUC ED ANY EVIDENCE CONTROVERTING THE FACTUAL FINDING MENTIONED IN THE IMPUGNED ORDER , THEREFORE, THE DISALLOWANCE IS DESIRABLE IN THE IMPUGNED APPEAL. EVEN OTHERWISE O N THE TAX EFFECT THIS APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED. THIS VIEW FINDS SUPPORT FROM THE DECISION OF THE TRIBUNAL IN THE CASE OF R.K. HOTELS (ITA NO.383/IND /09). THE RELEVANT PORTION OF THE ORDER IS REPRODUCED HEREUNDER :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER O F LD. CIT-(A)-II, BHOPAL, DATED 31.3.2009 FOR THE AY 2005-06 ON THE G ROUND THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN DELETING THE ADDITION OF 6,37,206/- MADE BY THE AO BY APPLYING THE PROVISIONS OF SEC. 154(3) ON ACCOUN T OF INCORRECTNESS AND INCOMPLETENESS OF BOOKS OF ACCOUNT.. 2. DURING HEARING OF THE APPEAL, WE HAVE HEARD SMT. APARNA KARAN, LD. SR. DR AND SHRI H.P. VERMA ALONG WITH SHRI ASHISH GOYAL , LD. COUNSEL FOR ASSESSEE. AT THE OUTSET, IT WAS POINTED OUT THAT THERE IS TYP OGRAPHICAL ERROR IN MENTIONING THE FIGURE OF RS.6,37,206/- IN THE GROUND OF APPEA L AS THE CORRECT FIGURE IS RS.3,94,732/-. THE ASSERTION OF THE ASSESSEE WAS CO NSENTED TO BE CORRECT BY THE LD. SR. DR. FURTHER, IT WAS POINTED OUT THAT TH E TAX EFFECT IS ALSO BELOW MONETARY LIMIT, THEREFORE, THE APPEAL OF THE REVENU E MAY BE DISMISSED. THE LD. SR. DR FAIRLY AGREED TO THE SUBMISSION OF THE ASSES SEE TO THE EXTENT THAT THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT FOR F ILING THE APPEAL BEFORE THE TRIBUNAL. 6 S.NO. AUTHORITY MONETARY LIMIT (IN RS.) 1 ITAT 2,00,000/ - 2 APPEAL UNDER SECTION 260A BEFORE HIGH COURT 4,00,000/ - 3 SUPREME COURT 10,00,000/ - THE BOARD FURTHER CLARIFIED THE TAX EFFECT, WHICH M EANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSE SSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE, HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE I SSUE AGAINST WHICH APPEAL IS INTENDED TO BE FILED. HOWEVER, TH E TAX WILL NOT INCLUDE ANY INTEREST THEREON. IN CASES OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDU CED IN THE ORDER TO BE APPEALED AGAINST. IN THE PRESENT APPEAL, T HE TOTAL DISPUTED ADDITION IS RS.3,94,732/-, THEREFORE, AS AGREED/CAN VASSED BY LD. REPRESENTATIVES FROM BOTH SIDES, THE TAX EFFECT IS BELOW RS.2 LAKHS, THE LIMIT PRESCRIBED FOR FILING APPEAL BEFORE THE T RIBUNAL, THEREFORE, APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OU R VIEW FINDS SUPPORT FROM THE DECISION OF THE CHANDIGARH BENCH O F THE TRIBUNAL IN THE CASES OF SHRI J.S. LUTHRA (ITA NO.712 TO 715 /CHD/2009) AND ITO, WARD 2(2), ROPAR VS. THE JHALLIAN KALAN PRI. C OOP MILK PRODUCE SOCIETY LTD., JHALLIAN KALAN DISTT. ROPAR (ITA NO.7 21/CHD/2009). THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CAS E, FACTS AND THE JUDICIAL PRONOUNCEMENTS (SUPRA), THIS APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES ON 6.10.2009. IN THE LIGHT OF THE ABOVE, THIS GROUND OF THE REVEN UE IS HAVING NO MERIT, THEREFORE, THE STAND OF THE LEARNED CIT(A) IS AFFIR MED CONSEQENTLY, THIS GROUND OF THE REVENUE IS DISMISSED. 4. THE NEXT GROUND RAISED IS THAT THE LEARNED FIRST APPELLATE AUTHORITY ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW C ARRY FORWARD OF BROUGHT FORWARD LOSSES OF EARLIER YEARS WITHOUT ANY BASIS. THE CONTENTION RAISED ON BEHALF OF THE REVENUE IS THAT IN COMING TO A PARTIC ULAR CONCLUSION, NO BASIS HAS BEEN ADDUCED BY THE LEARNED FIRST APPELLATE AUT HORITY AND IT WAS RIGHTLY DISALLOWED BY THE ASSESSING OFFICER IN THE ABSENCE OF PROOF FURNISHED BY THE ASSESSEE. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. THE STAND OF THE REVENUE IS T HAT PROOF OF LAST YEARS LOSSES WAS NOT FURNISHED BY THE ASSESSEE CONSEQUENT LY THESE ARE NOT ALLOWABLE WHEREAS BEFORE THE LEARNED FIRST APPELLAT E AUTHORITY THERE IS A FACTUAL FINDING THAT IN ALL PREVIOUS YEARS RETURNS WERE DULY FILED BY THE ASSESSEE AND THE SAME WERE AVAILABLE ON RECORD OF T HE ASSESSING OFFICER. 7 IN THE IMPUGNED ORDER THE LEARNED FIRST APPELLATE A UTHORITY HAS DIRECTED THE ASSESSING OFFICER TO ALLOW CARRY FORWARD OF BRO UGHT FORWARD LOSSES OF EARLIER YEARS WHICH WERE NOT SET OFF AFTER VERIFICA TION OF RECORDS OF EARLIER YEARS. EVEN OTHERWISE, IT IS A CASE OF ASSESSED LO SS WHICH HAS NOT BEEN SET OFF. CONSEQUENTLY, WE ARE IN AGREEMENT THAT IN VIE W OF THE PROVISIONS OF SECTION 72 IT SHOULD BE ALLOWED. CONSEQUENTLY, THE RE IS NO GRIEVANCE TO THE REVENUE SINCE IT HAS BEEN REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO DO THE NEEDFUL AFTER VERIFICATION OF REC ORDS OF EARLIER YEARS. MY VIEW FINDS SUPPORT FROM THE RATIO LAID DOWN IN CIT V. J.H. GOTLA; 156 ITR 323 (SC); TARA DEVI BEHL V. CIT; 218 ITR 541 (P&H) . THE HONBLE APEX COURT IN THE CASE OF CIT V. MAHALAXMI SUGAR MILLS C O. LTD.; 160 ITR 920 EVEN WENT TO THE EXTENT THAT ITO MUST ALLOW SET OFF EVEN IF IT IS NOT CLAIMED BY THE ASSESSEE BECAUSE A DUTY IS CAST UPON THE ITO TO APPLY THE RELEVANT PROVISIONS OF THE INDIAN INCOMETAX ACT FOR THE PURP OSE OF DETERMINING THE TRUE FIGURE OF ASSESSEES TAXABLE INCOME AND THE CO NSEQUENTIAL TAX LIABILITY. MERELY BECAUSE THE ASSESSEE FAILS TO CLAIM THE BENE FIT OF SET OFF CANNOT RELIEVE THE ITO OF HIS DUTY TO APPLY SECTION 72 IN AN APPROPRIATE CASE. IN VIEW OF THESE FACTS AND JUDICIAL PRONOUNCEMENTS, I HAVE FOUND NO INFIRMITY IN THE IMPUGNED ORDER, CONSEQUENTLY, THIS GROUND OF THE REVENUE ALSO FAILS. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF HEARING ON 1.12.2009. IN THE AFORESAID CASE, THE TRIBUNAL HAS PASSED A DE TAILED ORDER, THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CASE AND RESPE CTFULLY FOLLOWING THE AFORESAID DECISION, THIS APPEAL OF THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON 26 TH MAY, 2010. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 28.10.2010. 4. HOWEVER, THE CBDT VIDE INSTRUCTION NO.3/2011 DAT ED 9.2.2011 REVISED/RAISED THE MONETARY LIMIT FOR FILING THE AP PEAL BY THE DEPARTMENT AS UNDER: S.NO. AUTHORITY MONETARY LIMIT (IN RS.) 1 ITAT 3,00,000/ - 2 APPEAL UNDER SECTION 260A BEFORE HIGH COURT 10,00,000/ - 3 SUPREME COURT 25,00,000/ - 8 THE ABOVE INSTRUCTIONS ARE APPLICABLE TO THE APPEAL S FILED ON OR AFTER 9.2.2011, ISSUED U/S 268A(1) OF THE I.T. ACT, 1961. AS FAR AS THE MERIT OF THE CASE IS CONCERNED, IT HAS ALREADY BEEN EXAMI NED BY THE LD. CIT(A) BY KEEPING THE PROVISIONS OF SEC. 275(1)(A) OF THE ACT. SINCE THE APPEAL OF THE ASSESSEE WAS DECIDED BY THE LD. C IT(A) VIDE ORDER DATED 4.11.2004, CONSEQUENTLY, THE PENALTY PROCEEDI NGS WERE SUPPOSED TO BE DISPOSED OF BY 31.3.2006 WHEREAS THE SAME WAS DECIDED VIDE ORDER DATED 22.4.2009. IN VIEW OF THIS FACT, THE ORDER WAS RIGHTLY QUASHED, CONSEQUENTLY, WE FIND NO INFIRMITY IN THE STAND OF THE LD. CIT(A). THE SAME IS UPHELD. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 31.5.2011. IDENTICALLY THE BENCH IN THE CASE OF VINOD BANSAL, ITA NO. 275/IND/2010 VIDE ORDER DATED 22.6.2011 DISMISSED T HE APPEAL OF THE REVENUE ON THE ISSUE OF TAX EFFECT. THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF CIT V. ASHOK KUMAR MANIBHAI & COMPAN Y (2009) 317 ITR 386 HELD AS UNDER :- THIS COURT CAN VERY WELL TAKE JUDICIAL NOTICE OF T HE FACT THAT BY PASSAGE OF TIME MONEY VALUE HAS GONE DOWN, THE COST OF LITIGATION EXPENSES HAS GONE UP, THE ASSESSEE ON THE FILE OF T HE DEPARTMENT HAVE BEEN INCREASED CONSEQUENTLY, THE BURDEN ON THE DEPA RTMENT HAS ALSO INCREASED TO A TREMENDOUS EXTENT. THE CORRIDORS OF THE SUPERIOR COURTS ARE CHOKED WITH HUGE PENDENCY OF CASES. IN THIS VIEW O F THE MATTER, THE BOARD HAS RIGHTLY TAKEN A DECISION NOT TO FILE REFE RENCES IF THE TAX EFFECT LESS THAN RS. 2 LAKHS. THE SAME POLICY FOR OLD MATT ERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN OUR VIEW, THE BOARD S CIRCULAR DATED MARCH 27, 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED. THE DEPARTMENT IS NOT JUSTIFI ED IN PROCEEDING WITH THE OLD REFERENCE WHEREIN THE TAX IMPACT IS MINIMAL . THUS, THERE IS NO JUSTIFICATION TO PROCEED WITH DECADES OLD REFERENCE S HAVING NEGLIGIBLE TAX EFFECT. 4. VIDE BOARD INSTRUCTION NO. 5/2008 DATED 15.5.200 8 THE MONETARY LIMIT AND OTHER CONDITIONS FOR FILING THE APPEAL OF THE DEPARTMENT (IN INCOME TAX MATTERS) BEFORE THE APPEL LATE TRIBUNAL, HIGH COURT AND SUPREME COURT WAS SPECIFIED. HOWEVER, IN SUPPRESSION OF THESE INSTRUCTIONS, VIDE INSTRUCTION NO. 3/2011 DAT ED 9.2.2011 THE BOARD INCREASED THE MONETARY LIMIT AS DISCUSSED ABO VE (TABLE). THE TRIBUNAL (MUMBAI BENCH) IN THE CASE OF M/S LAXMI J. JEWEL PRIVATE LIMITED (ITA NO. 2165/MUM/2010) BY FOLLOWING THE DE CISION IN THE CASE OF HONBLE BOMBAY HIGH COURT IN CIT V. MADHUKAR K. INAMDAR (HUF) WHEREIN IT WAS HELD THAT THE CIRCULAR WILL BE APPLI CABLE TO THE CASES PENDING BEFORE THE COURT EITHER FOR ADMISSION OR FO R FINAL DISPOSAL AND HELD THAT INSTRUCTION NO. 3 DATED 9.2.2011 IS APPLI CABLE FOR THE APPEAL PREFERRED BY THE REVENUE AND DISMISSED THE SAME ON TAX EFFECT BY FURTHER CONSIDERING THE DECISION IN THE CASE OF LIV ING STONES JEWELLERY PRIVATE LIMITED VS. DCIT; 31 SOT 323. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS, WE DISMISS THE APPEAL OF THE R EVENUE ON THE ISSUE OF TAX EFFECT/MONETARY LIMIT. 9 4. THERE IS UNCONTROVERTED FACT THAT THE TAX EFFECT IN THE AFORESAID APPEALS IS BELOW PRESCRIBED MONETARY LIMI T. THE TRIBUNAL IN THE AFORESAID ORDER HAS ALREADY CONSIDE RED VARIOUS JUDICIAL PRONOUNCEMENTS INCLUDING FROM HONBLE APEX COURT & HIGH COURTS ALONG WITH THE CIRCULARS OF THE CBDT IN CLUDING THE LATEST CIRCULAR NO.3/11 DATED 9.2.2011, AS PER WHIC H, THE MONETARY LIMIT FOR FILING THE APPEAL WAS ENHANCED. IN VIEW OF THESE FACTS, THE APPEALS OF THE REVENUE ARE DISMISS ED BEING NOT MAINTAINABLE. 5. SO FAR AS THE CROSS-OBJECTIONS FILED BY THE ASSE SSEE ARE CONCERNED, THE LEARNED COUNSEL FOR THE ASSESSEE SHR I P.D. NAGAR DID NOT PRESS THE SAME, THEREFORE, THESE ARE DISMISSED AS NOT PRESSED. FINALLY, THE APPEALS OF THE REVENUE ARE DISMISSED B EING NOT MAINTAINABLE AND THE CROSS-OBJECTIONS OF THE ASSESS EE ARE DISMISSED AS NOT PRESSED. 10 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUS ION OF THE HEARING. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03.1.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!