ACIT, CC- XXVII, Kolkata, Kolkata V. M/s. Wall Street Holdings & Enterprises Pvt. Ltd., Kolkata

ITSSA 93/KOL/2011

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8488 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 19-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L K S DEHIA
• Assessee Lawyers: A K TIBREWAL
• Keywords: Audit objection; Tax effect
• Section: 153A

Judgement Text

I.T.(SS)A. NO. 93/ KOL. / 2011 ASSESSMENT YEAR : 2004-05 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER), AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.(SS)A. NO.: 93/ KOL. / 2011 ASSESSMENT YEAR : 2004-2005 ASSISTANT COMMISSIONER OF INCOME TAX,...APPELL ANT CENTRAL CIRCLE-XXVII, KOLKATA, 18, RABINDRA SARANI, KOLKATA-700 001 -VS.- M/S. WALL STREET HOLDINGS & ENTERPRISES PVT. LTD., RESPONDENT, 53, CHOWRINGHEE ROAD, KOLKATA-700 071, [PAN : AAACW 2811 J] APPEARANCES BY: SHRI L.K.S. DEHIA, CIT(D.R) FOR THE APPELLANT SHRI A.K. TIBREWAL, A.R. FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : SEPTEMBER 28, 201 2 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 28, 2012 O R D E R PER PRAMOD KUMAR: 1. THIS APPEAL IS FILED BY THE ASSESSING OFFICER AN D IS DIRECTED AGAINST THE ORDER DATED 10 TH FEBRUARY, 2011, PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) FOR THE ASSESS MENT YEAR 2004-05. 2. THERE IS NO DISPUTE THAT TAX INVOLVED IN THE APP EAL, EXCLUDING INTEREST, IS LESS THAN RS.3,00,000/-. THERE IS ALSO NO DISPUTE THAT IN TERMS OF INSTRUCTION NO. 3/2011 (F. NO. 279/MISC. 142/200 7-ITJ) DATED 9 TH I.T.(SS)A. NO. 93/ KOL. / 2011 ASSESSMENT YEAR : 2004-05 PAGE 2 OF 3 FEBRUARY, 2011, ORDINARILY DEPARTMENTAL APPEALS CAN NOT BE FILED BEFORE THIS TRIBUNAL WHEN TAX EFFECT, EXCLUDING INTEREST, IS LESS THAN RS.3,00,000/-. 3. YET, THIS APPEAL HAS BEEN FILED BEFORE US AND IT S CONTENDED, VIDE GROUND NO. 3 THAT THE PRESENT APPEAL IS BEING FILED IN SPITE OF THE TAX EFFECT INVOLVED BEING LESS THAN RS.3 LAKHS, FOR THE REASON THAT THE VALIDITY OF PROVISION OF SECTION 153A OF THE ACT IS UNDER CHALL ENGE. THE SHORT QUESTION THAT WE MUST, THEREFORE, DECIDE BEFORE ONE CAN PROC EED TO TAKE UP THE MATTER ON MERITS IS WHETHER THIS APPEAL IS MAINTAIN ABLE. 4. PARTIES ARE HEARD AND RECORDS HAVE BEEN PERUSED . 5. WE FIND THAT IN TERMS OF PARAGRAPH 8 OF THE CBDT INSTRUCTIONS DATED 9 TH FEBRUARY, 2011 (SUPRA), APPEALS CAN BE FILED EVEN WHEN TAX EFFECT IS LESS THAN RS.3 LAKHS IN THE FOLLOWING SIT UATION :- (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF THE ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS B EEN ACCEPTED BY THE DEPARTMENT. 6. CLEARLY, THEREFORE, UNLESS CONSTITUTIONAL VALIDI TY OF SECTION 153A IS CHALLENGED, A MERE CHALLENGE TO THE INTERPRETATI ON OF SECTION 153A CANNOT BE COVERED BY THE EXCEPTION (A) SET OUT ABOV E. THAT IS NOT THE CASE. IT IS NOT THE REVENUES CASE THAT THIS APPEAL IS COVERED BY EXCEPTION (B) AND (C) ABOVE. LEARNED DEPARTMENTAL R EPRESENTATIVES CONTENTION THAT THE PRESENT CASE INVOLVES CHALLENGE TO CONSTITUTIONAL I.T.(SS)A. NO. 93/ KOL. / 2011 ASSESSMENT YEAR : 2004-05 PAGE 3 OF 3 VALIDITY, AS ITS CORRECT INTERPRETATION IS UNDER C HALLENGE, CANNOT BE ACCEPTED. NEITHER WE ARE COMPETENT TO HEAR CHALLENG E TO CONSTITUTIONAL VALIDITY OF SECTION, NOR HAS THIS CHALLENGE BEEN MA DE BEFORE US. IN THIS VIEW OF THE MATTER, WE FIND THAT THE PRESENT APPEAL , NOT BEING COVERED BY EXCEPTIONS, SET OUT IN PARAGRAPH 8 OF CBDT INSTR UCTION (SUPRA) AND TAX EFFECT BEING LESS THAN RS.3 LAKHS, IS NOT MAINT AINABLE. WE, THEREFORE, DISMISS THE SAME. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT TODAY I.E. ON 28 TH DAY OF SEPTEMBER, 2012 IMMEDIATELY AFTER HEARING OF THE APPEAL. SD/- SD/- GEORGE MATHAN PRAMOD KUMAR (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 28 TH DAY OF SEPTEMBER, 2012 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.