Income tax Officer, Seoni, Seoni V. Ridhkarandas Poonamchand Bhura, Seoni, Seoni

MA 1/JAB/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6039 (ITAT-JABALPUR)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 02-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K SINGH; I B KHANDEL
• Assessee Lawyers: MUKESH INDURKHYA
• Keywords: Audit objection; Principle of natural justice; Tax effect
• Section: 268A

Judgement Text

1 | P A G E IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER M.A. NO.01/JAB/2020 (ARISING OUT OF I.T.A. NO. 33/JAB/2019) ASSESSMENT YEAR: 2010-11 INCOME TAX OFFICER, INCOME TAX OFFICE, BAINGANGA HEIGHTS, BARAPATHAR, SEONI - 480661 (MP) VS. RIDHKARANDAS POONAMCHAND BHURA, BUDHWARI BAZAR, SEONI 480661 (MP) (PAN: AAFFR 1706H) (APPELLANT ) (RESPONDENT) APPELLANT BY SHRI R.K. SINGH C.I.T. (DR) & SHRI I. B. KHANDEL, D.R. RESPONDENT BY SHRI MUKESH INDURKHYA, CA DATE OF HEARING 28/07/2020 DATE OF PRONOUNCEMENT 28/09/2020 ORDER PER SANJAY ARORA, AM: THIS IS A MISCELLANEOUS APPLICATION (MA) BY THE REV ENUE IN RESPECT OF THE ORDER U/S. 254(1) OF THE INCOME-TAX ACT, 1961 ( THE ACT HEREINAFTER) BY THE TRIBUNAL DATED 23/08/2019, DISMISSING ITS APPEAL IN LIMINE AS NOT PRESSED/WITHDRAWN IN VIEW OF SECTION 268A OF THE AC T. 2. THE REVENUE PER ITS INSTANT MA STATES THAT INASM UCH AS ITS CAPTIONED APPEAL WAS EXCEPTED UNDER PARA 10(C) OF THE BOARD C IRCULAR NO. 3/2018 DATED 11/07/2018, EVEN AS STATED AT PARA 2 OF THE AUTHORI ZATION MEMO DATED 15/05/2019 ISSUED U/S. 253(2) OF THE ACT, ACCOMPANY ING THE APPEAL MEMO, THE TRIBUNAL COULD NOT HAVE DISMISSED ITS APPEAL AS NO T PRESSED OR WITHDRAWN. A 2 | P A G E REFERENCE IS ALSO MADE TO PARA 7 OF THE IMPUGNED OR DER SAVING SUCH APPEALS ON AN ERROR OR OMISSION AS SPECIFIED THEREIN BEING BRO UGHT TO NOTICE OF THE TRIBUNAL. THE ASSESSEE, ON THE OTHER HAND, RELYING ON THE FOL LOWING DECISIONS, CLAIMS THAT INASMUCH AS NO OBJECTION WAS RAISED BY THE REVENUE AT THE TIME OF HEARING OF ITS APPEAL BEFORE THE TRIBUNAL (ON 23/08/2019), IT COULD NOT RAISE ANY OBJECTION NOW, NEITHER COULD IT POSSIBLY PLACE ANY MATERIAL I N SUBSTANTIATION OF ITS CLAIMS AT THIS STAGE INASMUCH AS THE MISTAKE RECTIFIABLE U /S. 254 (2) IS TO BE WITH REFERENCE TO THE MATERIAL ON RECORD, I.E., ALREADY ON THE FILE OF THE TRIBUNAL: CIT VS. SHRI SHANTHINATH BENEFIT FUND LTD. [2015] 371 ITR 0271 (MAD) POTHINA VENKATESWARA SWAMY VS. ACIT [2014] 369 ITR 0639 (AP) DHOLADHAR INVESTMENT PVT. LTD. VS. [2014] 362 ITR 0111 (DEL) 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATE RIAL ON RECORD. 3.1 THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE ARGUMENTS ADVANCED, EVEN AS EXPLAINED AT THE TIME OF HEARING THE PETITION, ARE THE SAME AS FOR ANOTHER SET OF MISCELLANEOUS APPLICATIONS; THE TRIBUNAL, ON 23/8/2019, DISMISSING AS NOT MAINTAINABLE 200 APPEALS BY THE R EVENUE (AND CONNECTED COS BY THE ASSESSEES) U/S. 268A OF THE ACT VIDE TWO ORD ERS, OF WHICH ONE WAS IN RESPECT OF A PARTICULAR GROUP OF 104 CASES. THE SAM E (IN MA NOS. 03 TO 07/JAB/2020) HAVE SINCE BEEN DISPOSED OF, ALLOWING THE REVENUES MAS, I.E., IN PRINCIPLE. THE PRINCIPAL REASONS FOR THE SAME ARE T HE NON-ALLOWANCE OF PROPER OPPORTUNITY OF HEARING, INCLUDING FOR RAISING OBJEC TION/S, IF ANY, TO THE REVENUE WHILE HEARING ITS APPEALS IN THE FIRST INSTANCE, A S WELL AS NOT TAKING COGNIZANCE OF THE MATERIAL ON RECORD, I.E., OF THE FACT OF THE APPEALS BEING EXCEPTED, AS COMMUNICATED PER THE AUTHORIZATION MEMO U/S. 253(2) . THE RELEVANT PART OF THE TRIBUNALS ORDER, WHICH IS EQUALLY APPLICABLE IN TH E FACTS OF THE PRESENT CASE, IS AS UNDER: 3 | P A G E 3. WE HAVE HEARD THE PARTIES; PERUSED THE MATERIAL ON RECORD, AND GIVEN OUR CAREFUL CONSIDERATION TO THE MATTER. 3.1 AT THE OUTSET, WE NOTE THAT THE INSTANT PROCEED INGS BEING U/S. 254(2), BAR DEBATABLE ISSUES. IT SHOULD THEREFORE NORMALLY SUFF ICE, FOR THE REVENUE TO SUCCEED, IF THE IMPUGNED ASSESSMENT IS, ON THE BASIS OF THE MAT ERIAL ON RECORD, SHOWN TO BE ON THE BASIS OF AN AUDIT OBJECTION, IN WHICH CASE THE EXCL USION PER CL. 10(C) OF THE BOARDS CIRCULAR NO. 3/2018 WOULD APPLY. THE AUTHORIZATION MEMO DATED 30/10/2018 BY THE PR. CIT, ACCOMPANYING FORM-36 (MEMORANDUM OF APPEAL), CLEARLY RECORDS THIS FACT; PARA 2 THEREOF READING AS UNDER: 2. UNDER SECTION 253(2) OF THE ACT, I, THEREFORE, DIRECT THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-SATNA, TO FILE AN APPEAL BEFO RE THE APPELLATE TRIBUNAL AGAINST THE ORDER OF THE ABOVE AUTHORITY BECAUSE THE ISSUE OF D ELETION UNDER APPEAL FALLS UNDER POINT 10(C) OF THE EXCEPTIONAL CLAUSE OF CIRCULAR N O. 3/2018, DATED 11/07/2018 EVEN THOUGH THE TAX EFFECT BEING BELOW THE MONETARY LIMI T, FURTHER APPEAL IS BEING FILED FOR ASSESSMENT YEAR 2008-09 ON THE GROUND OF APPEAL ENC LOSED. 3.2 AT THIS STAGE WE MAY CONSIDER THE DECISION IN CONCORD PHARMACEUTICALS LTD . (SUPRA), ALSO FOLLOWED BY THE TRIBUNAL. THE SAME, R ATHER THAN THAT OF THE ASSESSEE, SUPPORTS THE CAUSE OF THE REVENUE IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. PER THE SAME, THE HON'BLE COURT CLEARLY STATES THAT IF AN OBJECTION IS RAISED BEFORE THE TRIBUNAL AT THE TIME OF HEARING, WHICH WAS NOT DEAL T WITH BY IT, AND THE REVENUES APPEAL DISMISSED ON LOW TAX-EFFECT, THE REVENUE WAS AT LIBERTY TO MOVE THE TRIBUNAL TO RESTORE ITS APPEAL FOR BEING DECIDED ON MERITS. THI S IS PRECISELY WHAT THE REVENUE IS IN THE PRESENT CASE DOING PER ITS INSTANT APPLICATIONS U/S. 254(2). THIS IS IN VIEW OF THE MANNER IN WHICH THE HEARING IN THE MATTER TOOK PLAC E. THE IMPUGNED ORDER DISMISSES 84 APPEALS BY THE REVENUE AND 12 COS BY THE ASSESSE ES AT ONE GO. ANOTHER 104 APPEALS/COS, HEARD SIMULTANEOUSLY, WERE ALSO DISMIS SED ALONG WITH, ALBEIT PER A SEPARATE ORDER; THE HEARING IN ALL CASES CONCLUDING WITHIN A FEW MINUTES. THE APPEALS WERE HEARD EN MASSE , WITHOUT AFFORDING ANY SPECIFIC OPPORTUNITY TO THE REVENUE TO RAISE ANY OBJECTION, SERIOUSLY VIOLATING THE PRINCI PLES OF NATURAL JUSTICE. IN FACT, GIVEN THE SHORT TIME FRAME IN WHICH THE APPEALS WERE FIXE D, EVEN THE NOTICES WERE NOT SENT TO THE PARTIES; THE LIST/S ITSELF BEING FINALIZED ONLY A COUPLE OF DAYS PRIOR TO THE DATE OF THEIR LISTING. THE ITAT BAR AND THE OFFICE OF THE D EPARTMENTAL REPRESENTATIVES WERE 4 | P A G E INTIMATED OF THE POSTING, CONVEYING THE LISTS ON BE ING FINALIZED ON 20/8/2020, & ON 22/8/2020, I.E., THE REVISED LISTS. A FAIR HEARING ITSELF DEMANDS ADEQUATE NOTICE, AND BY CONVENTION FOUR WEEKS TIME IS GIVEN BY THE TRIBUNAL . WHY, THE ORDER DATED 14/8/2019 IN ITO V. DINESH MADHAVLAL PATEL & ORS . BY THE AHMEDABAD BENCH OF THE TRIBUNAL, A COMMON ORDER DISMISSING, LIKE-WISE, 628 APPEALS, RE PRODUCED AT PARA 5 (PAGES 9 TO 15) OF THE IMPUGNED ORDER, ITSELF, VIDE PARA 1 THEREOF, NOTES THAT INDIVIDUAL NOTICES TO THE PARTIES WERE DISPENSED WITH IN LIGHT OF THE DISCUSS IONS WITH THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (GUJARAT) AND THE REPRES ENTATIVES OF THE ITAT BAR ASSOCIATION. THE ARGUMENTS RAISED BEFORE THE TRIBUN AL IN THE SAID APPEALS, AS A READING OF THE SAME WOULD CLARIFY, WERE ON THE LEGAL ASPECT S OF THE MATTER, VIZ. THE APPLICABILITY OF THE CIRCULAR TO PENDING APPEALS, E TC., NOT TOUCHING THE SPECIFIC FACTS OF ANY PARTICULAR CASE. IT IS PRIMARILY FOR THE SAID A RGUMENTS, EQUALLY APPLICABLE IN THE INSTANT CASE, THAT AN EXTENSIVE REFERENCE, REPRODUC ING IT IN TOTO , WAS MADE BY THE TRIBUNAL THERETO IN THE IMPUGNED ORDER. I N THE PRESENT CASE, SPEAKING FOR ALL THE 96 APPEALS/COS, NO COUNSELS, OTHER THAN THOSE LISTED, WERE PRESENT DURING HEARING. ALL THIS IS IN FACT A MATTER OF THE TRIBUNALS RECORD. THE CLAIM OF PROPER OPPORTUNITY HAVING BEEN PROVIDED BY THE TRIBUNAL TO THE REVENUE FOR RAISING OBJECTION/S, IMPLICIT IN THE CHARGE OF IT HAVING NOT RAISED ANY OBJECTION AT THE TIME OF HEARING, IS THUS A FIGMENT OF IMAGINATION; THE CO-AUTHOR OF THE IMPUGN ED ORDER BEING A CONSTITUENT OF THE BENCH THAT HEARD THE MATTERS. THERE IS, ACCORDINGLY , NO REFERENCE TO ANY ARGUMENT, BY EITHER SIDE, IN THE IMPUGNED ORDER, MUCH LESS ANY M ENTION OF PROVISION OF OPPORTUNITY TO RAISE ANY SPECIFIC OBJECTION; THE BENCH MAKING I T CLEAR THAT THE LISTED MATTERS HAD BEEN SO ON BEING IDENTIFIED ON THE BASIS OF THE REV ISED MONETARY LIMIT QUA TAX-EFFECT PER THE RECENTLY ISSUED BOARD CIRCULAR OF AUGUST 8, 2019, ENHANCING THE SAME FOR THE MAINTAINABILITY OF THE REVENUES APPEALS BEFORE THE TRIBUNAL. THE IMPUGNED ORDER IS THUS NOT MAINTAINABLE ON THIS SHORT GROUND ALONE, I.E., NON-PROVISION OF ANY OPPORTUNITY, OR IN ANY CASE PR OPER OPPORTUNITY, OF BEING HEARD. THE TRIBUNAL, WHILE DOING SO, WAS ACUTELY CONSCIOUS OF THE LEGAL INFIRMITY OF THIS COURSE; THE PITFALLS IT ENTAILED; AND ITS DUTY TOW ARDS THE LITIGANTS, I.E., THE TAX PAYERS AND THE REVENUE. ACCORDINGLY, KEEN TO AVOID ANY PRE JUDICE BEING CAUSED BY PROCEEDING IN THE MANNER IT DOES, IT, EVEN AS MADE CLEAR EARLIER IN THE OPEN COURT, 5 | P A G E PREEMPTING THE RAISING OF ANY OBJECTION BY THE REVE NUE, PROVIDED LIBERTY TO THE PARTIES TO MOVE THE TRIBUNAL WHERE ANY APPEAL OR CO, NOT CO VERED U/S. 268A, HAS NEVERTHELESS BEEN DISMISSED BY IT IN LIMINE . PARA 7 OF THE TRIBUNALS ORDER, ALSO READ OUT DURING HEARING, READS AS UNDER: 7. IT MAY BE CLARIFIED THAT THOUGH EVERY CARE HAS B EEN TAKEN BY THE REGISTRY OF THE TRIBUNAL IN IDENTIFYING THE LISTED APPEALS, IT MAY YET BE THAT SOME ERROR IN WORKING THE TAX EFFECT MAY HAVE OCCURRED. IT MAY ALSO BE THAT A N APPEAL/S IS OTHERWISE SAVED BY THE EXCEPTIONS LISTED AT PARA 10 (SCOPE OF WHICH STANDS WIDENED VIDE AMENDMENT DATED 20/8/2018) OR PARA 11 OF THE CIRCULAR. SIMILARLY, I T MAY BE THAT A CO/S BEARS AN INDEPENDENT GROUND/S, RAISED FOR ADJUDICATION. ACCO RDINGLY, LIBERTY IS HEREBY GRANTED TO THE PARTIES TO, WHERE SO, MOVE THE TRIBUNAL IN T HIS REGARD, IN WHICH CASE IT SHALL, WHERE SATISFIED ON MERITS, RECALL AN APPEAL/S OR, A S THE CASE MAY BE, A CO/S, FOR BEING HEARD ON MERITS. FURTHER, THE RECALL OF AN APPEAL W OULD BE ACCOMPANIED BY THE RECALL OF THE ASSESSEES CORRESPONDING CO, IF ANY, DISMISS ED ALONG WITH. NEEDLESS TO ADD, THE TRIBUNAL SHALL, WHILE DOING SO, WHICH SHALL BE PER A SPEAKING ORDER, GRANT AN OPPORTUNITY OF HEARING TO THE OTHER SIDE. ( EMPHASIS, OURS ) SIMILAR LIBERTY, IT MAY BE NOTED, WAS ALSO PROVIDED BY THE TRIBUNAL IN DINESH MADHAVLAL PATEL (SUPRA) VIDE PARA 8 THEREOF WHILE SUMMARILY DISMIS SING 628 APPEALS, MAKING IT CLEAR THAT EITHER OWING TO WRONG COMPUTAT ION OF TAX EFFECT OR OWING TO SUCH CASES BEING COVERED BY THE PERMISSIBLE EXCEPTIONS, OR FOR ANY OTHER REASON, THE TRIBUNAL SHALL TAKE REMEDIAL STEPS IN THIS REGARD. WHERE, THEN, ONE MAY ASK, IS THE SCOPE FOR RAISING ANY OBJECTION BY THE REVENUE, WHI CH FORMS THE BASIS OF THE ASSESSEES CASE, OR AT LEAST THE PRELIMINARY OBJECT ION TO THE INSTANT MAS ? WHERE, AGAIN, THEN, IS THE SCOPE FOR TAKING A PLEA BY THE ASSESSEE THAT THE REVENUE HAVING NOT RAISED AN OBJECTION AT THE TIME OF HEARING OF ITS A PPEAL, IS NOW PRECLUDED TO SEEK ITS RESTORATION? WHY, EVEN THE HONBLE COURTS DO THIS, MAKING A SAVING FOR ANY ERROR/OMISSION, I.E., WHILE SUMMARILY DISMISSING AN APPEAL/REFERENCE U/S. 268A THUS. IT MAY BE NOTED THAT THE TRIBUNAL DOES NOT ISSUE ANY F INDING, NOT EVEN WITH REGARD TO THE APPEALS UNDER REFERENCE BEING COVERED BY THE RELEVA NT BOARD CIRCULAR/S , OR OTHERWISE U/S. 268A. ALL THE IMPUGNED ORDER SAYS IS THAT THE LISTED APPEALS ARE DISMISSED AS WITHDRAWN/NOT PRESSED (REFER PARA 6), WHICH MAKES ITS ORDER LEGALLY INFI RM IN THE ABSENCE OF ANY MATERIAL ON RECORD TO SUPPORT THE SA ME . NEEDLESS TO ADD, THERE IS NO 6 | P A G E STATED BASIS OR REFERENCE TO ANY SUCH MATERIAL IN T HE IMPUGNED ORDER; THE SOLE BASIS FOR THE IN LIMINE DISMISSAL OF THE APPEALS BEING THEIR LOW TAX-EFFEC T. THE REVENUES APPLICATIONS ARE THUS ADMISSIBLE BY T HE VERY TERMS OF THE IMPUGNED ORDER ITSELF, I.E., THE LIBERTY PROVIDED P ER THE IMPUGNED ORDER. THOUGH, THEREFORE, THE APPLICATIONS ARE U/S. 254(2), ITS ST RICT PARAMETERS, AS NORMALLY OBTAIN, WOULD NOT APPLY THERETO. IT IS IN FACT THIS LIBERTY WHICH MAKES THE SAID ORDER LEGALLY SUSTAINABLE IN VIEW OF THE SHORT SHRIFT GIVEN TO TH E DUE PROCESS OF HEARING, FUNDAMENTAL TO THE JUDICIAL DECISION MAKING PROCESS AND, THUS, TO A JUDICIAL ORDER. THE INSTANT APPLICATIONS, THUS, BECOME THE FIRST OCCASION FOR T HE REVENUE (ASSESSEE) TO OBJECT TO ITS APPEAL (CO) BEING WRONGLY DISMISSED U/S. 268A, EVEN AS CONTEMPLATED BY THE IMPUGNED ORDER, AS WELL AS THE ORDER RELIED UPON BY IT. THE TRIBUNAL IS THUS OBLIGED TO CONSIDER AND DECIDE THE REVENUES OBJECTION/S ON ME RITS, AS THE LEAVE GRANTED PER THE IMPUGNED ORDER ITSELF PROVIDES. HOW, ONE MAY ASK, D OES THE DECISION IN CONCORD PHARMACEUTICALS LTD . (SUPRA) ASSISTS THE ASSESSEE/S UNDER SUCH CIRCUMS TANCES; THE SAME, RATHER, IN VIEW OF THE POSITION OF LAW AS CLA RIFIED THEREBY, DOES THAT OF THE REVENUE. EACH OF THE REVENUES APPLICATIONS ARE LIA BLE TO BE ALLOWED, RESTORING THE APPEALS (ALONG WITH THE COS, IF ANY) FOR BEING HEAR D ON MERITS, SUBJECT TO THE SATISFACTION, AFTER HEARING THE PARTIES, THAT THE A PPEALS ARE NOT COVERED BY THE EXTANT CIRCULAR/S. 3.3 THAT APART, THE AUTHORIZATION MEMO DATED 30/10/ 2018, FILED ALONG WITH THE APPEAL MEMO, FORMS PART OF THE TRIBUNALS RECORD. T HE SAME, REPRODUCED HEREINBEFORE IN ITS RELEVANT PART, CLEARLY STATES THAT THE INSTA NT APPEAL IS BEING FILED BY THE REVENUE DESPITE IT BEING A LOW TAX-EFFECT MATTER IN VIEW OF CL.10(C) OF CIRCULAR 3/2018. SECTION 268A, INTRODUCED BY FINANCE ACT, 2008, W.R.E.F. 01/ 4/1999, READS AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF A PPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PRO VISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORITY HAS NOT FI LED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESS EE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN AP PEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF 7 | P A G E ( A ) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR ( B ) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSE SSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE ORDERS OR I NSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), IT SHALL NOT BE LAWFUL FOR A N ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH A PPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS IS SUED UNDER SUB-SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL OR APPLIC ATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPL ICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB-SECTION (1) AN D THE PROVISIONS OF SUB- SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. SECTION 268A(1) EMPOWERS THE BOARD TO, FOR THE PURP OSE OF REGULATING THE FILING OF APPEALS OR APPLICATIONS FOR REFERENCE BY AN INCOME TAX AUTHORITY, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO THE INCOME TAX AUTHOR ITIES, FIXING MONETARY LIMITS AS DEEMED FIT. SECTION 268A(4) PROVIDES FOR THE TRIBUN AL OR COURT TO HAVE REGARD TO THE ORDERS, ETC. ISSUED U/S. 268A(1) AND THE CIRCUMSTAN CE UNDER WHICH AN APPEAL OR APPLICATION FOR REFERENCE WAS FILED, OR NOT FILED, IN RESPECT OF ANY CASE. CIRCULAR 3/2018, DATED 11/07/2018, IS ONE SUCH CIRCULAR, FIX ING THE MONETARY LIMIT AT RS. 20 LACS FOR AN APPEAL BEFORE THE TRIBUNAL. VIDE PARA 10 THE REOF, EXCEPTIONS ARE LAID DOWN, SO THAT THE CIRCULAR SHALL NOT APPLY WHERE AN APPEAL/A PPLICATION IS COVERED THEREBY. CLAUSE 10(C) STATES OF A CASE WHERE A REVENUE AUDIT OBJECTION IS ACCEPTED BY THE DEPARTMENT. IT IS THIS CLAUSE WHICH THE AUTHORIZATI ON MEMO REFERS TO. CIRCULAR 3/2018 WAS LATER MODIFIED BY CIRCULAR 17/2019, DATED 08/8/ 2019, ENHANCING THE MONETARY LIMIT FOR APPEALS BEFORE THE TRIBUNAL TO RS.50 LACS . THE OTHER TERMS AND CONDITIONS OF THE EARLIER CIRCULAR CONTINUED TO BE IN FORCE. THE FILING OF THE INSTANT APPEALS, IN VIEW OF THE APPLICABILITY OF CL.10(C) OF CIRCULAR 3/2018 , AS CLARIFIED BY THE AUTHORIZATION MEMO, WAS THUS A CIRCUMSTANCE ATTENDING THE FILING OF THE APPEALS IN THE INSTANT CASE. THE TRIBUNAL WAS THEREFORE OBLIGED TO HAVE REGARD T HERETO. IT WAS OPEN FOR THE TRIBUNAL TO, WHERE IN DOUBT, OR IN ORDER TO SATISFY ITSELF, OR AS A MATTER OF ABUNDANT CAUTION, REQUIRE THE REVENUE TO PLACE ON RECORD THE COPY OF THE REVENUE AUDIT 8 | P A G E OBJECTION, OR MAKE SUCH OTHER INQUIRY OR VERIFICATI ON IN THE MATTER AS DEEMED FIT AND PROPER, I.E., TO ASCERTAIN IF THE APPEALS WERE INDE ED EXCEPTED OR NOT. WE HAVE ALREADY STATED OF THE ABSENCE OF THE DUE PROCESS OF HEARING WHILE DISPOSING THESE APPEALS BY THE TRIBUNAL, SO THAT THERE WAS NO QUESTION OF EITH ER ANY OBJECTION BEING RAISED BY THE REVENUE, OR CALLING FOR ANY SUBSTANTIATION THEREFRO M BY THE TRIBUNAL. IN FACT, AN EXAMINATION OF THE AUTHORIZATION MEMOS U/S. 253(2), WHICH ACCOMPANY FORM 36 AND, THUS, FORM PART OF THE TRIBUNALS RECORD, BY ITS R EGISTRY WHILE FIXING THE APPEALS WHERE THE TAX-EFFECT WAS LOWER THAN THE MONETARY LI MIT SPECIFIED, WOULD ITSELF HAVE PRECLUDED THE LISTING OF SUCH APPEALS IN THE FIRST INSTANCE AS THESE WERE, AT LEAST PRIMA FACIE , EXCEPTED BY THE BOARD CIRCULAR. NO REGARD TO THE TERMS OF THE BOARD CIRCULAR, APART FROM THE TAX-EFFECT INVOLVED, WAS MADE BY THE TRIBUNAL WHILE LISTING THE APPEALS, AS THE SAME WOULD REQUIRE PERUSING THE RECORD, OR O THERWISE HEARING THE PARTIES ON THE APPLICABILITY OR OTHERWISE OF THE CIRCULAR. IT WAS FOR THIS REASON AS WELL THAT ITS ORDER BORE A CAVEAT, SAVING APPEALS (COS) WHICH MAY NOT B E ACTUALLY COVERED U/S. 268A FOR ANY REASON, THOUGH MAY STAND DISMISSED IN LIMINE . NOT ONLY THE APPEALS, THE CORRESPONDING COS BY THE ASSESSEES, BEING GENERALLY SUPPORTIVE IN NATURE, WERE ALSO PROTECTED INASMUCH AS THEY MAY CONTAIN AN INDEPENDE NT GROUND, I.E., INDEPENDENT OF THE GROUNDS ON MERITS ASSUMED PER THE REVENUES COR RESPONDING APPEAL. IT WAS IN THIS VIEW OF THE MATTER NOT NECESSARY FOR THE REVENUE TO HAVE RAISED A SPECIFIC GROUND OF APPEAL IN ITS RESPECT, I.E., OF IT BEING EXCEPTED, WHICH WAS ALSO CONTENDED BEFORE US TO BE ANOTHER UN-EXONERABLE LAP SE COMMITTED BY THE REVENUE, MISSING THE BUS AS IT WERE. THE PLEA IS EVEN OTHERW ISE, I.E., QUITE APART FROM THE HEARING PROCESS IN THE PRESENT CASE, DELINEATED HER EINBEFORE, MISDIRECTED. A GROUND OF APPEAL, BY DEFINITION, IS A STATEMENT OF THE CAUSE OF GRIEVANCE, PRECISELY STATED, WITH A VIEW TO OBTAIN THE DESIRED RELIEF THROUGH ADJUDICAT ION THEREON. THAT IS, CONCERNS THE APPEAL ON MERITS. ACCORDINGLY, THE INCLUSION OF THE BASIS FOR FILING AN APPEAL IN THE GROUNDS OF APPEAL (GOA) IS MISCONCEIVED. WHAT ADJUDICATION, ONE MAY ASK, IS BEING SOUGHT THUS ? THE AUTHORIZATION MEMO (AM), ON THE OTHER HAND, I S THE SOURCE OF AUTHORITY FOR THE AO TO FILE AN APPEAL BEFORE THE A PPELLATE TRIBUNAL. THE FACT OF AN APPEAL FALLING UNDER ANY OF THE EXCEPTIONS LISTED ( IN PARA 10), OR OTHERWISE BEING NOT A QUALIFYING APPEAL (PARA 11), REFERS TO THE APPLICAB ILITY OR OTHERWISE OF THE TERMS OF THE 9 | P A G E CIRCULAR, REGARD OF WHICH HAS TO BE, BY LAW, MADE B Y AN APPELLATE AUTHORITY WHILE DEALING WITH THAT APPEAL. THE AUTHORIZATION MEMO U/ S. 253(2) THUS RIGHTLY BEARS REFERENCE TO PARA 10(C), CONVEYING THUS THE BASIS O N WHICH AN APPEAL HAS BEEN FILED, I.E., DESPITE BEING A LOW TAX-EFFECT APPEAL AND, TH US, APPARENTLY COVERED BY THE EXTANT BOARD CIRCULAR, RENDERING IT AS NOT LIABLE TO BE EX CLUDED U/S. 268A FROM CONSIDERATION ON MERITS. THE TWO, I.E., GROUND OF APPEAL AND O BJECTION, OPERATE IN DIFFERENT FIELDS, WITH NO INTERFACE. FURTHER, IT MAY BE THAT AN APPEAL, VALIDLY FILED, MAY IN TIME GET COVERED BY A SUBSEQUENT CIRCULAR U/S. 268A. IT COULD BE THAT SUCH AN APPEAL IS THOUGH EXCEPTED BY A SUBSEQUENT CIRCULAR/S, AND THE REFORE THE AUTHORIZATION MEMO, ALREADY SUBMITTED, DOES NOT BEAR REFERENCE TO THE E XCEPTING CLAUSE, WHICH, EVEN OTHERWISE, THOUGH DESIRABLE, IS NOT AN ESSENTIAL EL EMENT/INGREDIENT OF AN AUTHORIZATION MEMO U/S. 253(2). AS SUCH, EVEN THE ABSENCE OF A RE FERENCE TO THE EXCEPTING CLAUSE THEREIN WOULD NOT PER SE PRECLUDE THE REVENUE TO RAISE AN OBJECTION BEFORE AN APPELLATE AUTHORITY IN ITS RESPECT, CLAIMING EXCLUS ION UNDER A PARTICULAR CLAUSE OF THE RELEVANT CIRCULAR/S. WE ARE IN THIS SUPPORTED, APAR T FROM THE PRINCIPLES OF NATURAL JUSTICE, BY THE DECISION IN CONCORD PHARMACEUTICALS LTD . (SUPRA). OF COURSE, THE ONUS IN SUCH A CASE, GIVEN THE PRIMA FACIE APPLICABILITY OF THE CIRCULAR, TO SATISFY THE COURT/TRIBUNAL AS TO THE NON-APPLICABILITY OF THE C IRCULAR, AND THUS OF S. 268A, WOULD BE ON THE REVENUE. IN FACT, IN THE CONTEXT OF THE ARGU MENT ADVANCED, I.E., OF THE OBJECTION HAVING NOT BEEN RAISED IN THE GOA, SO THAT IT BECOM ES ONLY A MODE OF BRINGING THE BASIS FOR FILING AN APPEAL TO THE NOTICE OF THE TRI BUNAL, IT BECOMES IRRELEVANT WHETHER THE SAME IS THROUGH GOA OR AM, AND THUS, OF NO CON SEQUENCE. RATHER, IT WOULD BE INCORRECT TO TERM IT AS AN OBJECTION, THE SAME BE ING EXCLUDED UNDER THE CIRCULAR ITSELF, TERMS OF WHICH HAVE TO BE COMPLIED WITH, SO THAT TH E REVENUE, ON ITS APPEAL BEING LISTED, IS OBLIGED TO STATE THE REASONS FOR HAVING FILED THE APPEAL IN THE FACTS AND CIRCUMSTANCES OF THE CASES, WITHOUT OBTAINING CLARI TY ON WHICH, IT WOULD NOT BE POSSIBLE FOR THE APPELLATE FORUM TO DECIDE ON THE M AINTAINABILITY OR OTHERWISE OF THE REVENUES APPEAL. IT IS, IN FACT, EVEN OTHERWISE, NOT OPEN FOR ANY APPELLATE AUTHORITY TO CONSIDER THE BOARD CIRCULAR/S IN PART. WHEN IT IS SAID THAT AN APPEAL IS COVERED BY A BOARD CIRCULAR/S, IT IMPLIES THE CIRCULAR READ AS A WHOLE , IN ITS ENTIRETY, AND NOT MERELY THAT 10 | P A G E PART THEREOF WHICH SPECIFIES THE THRESHOLD MONITORY LIMIT. IT IS EQUALLY INCUMBENT ON IT TO EXAMINE THE APPLICABILITY OF THE OTHER PARTS OF THE CIRCULAR AS WELL, WITHOUT WHICH IT CANNOT BE SAID, ONE WAY OR THE OTHER, IF AN APPEAL (OR AN APPLICATION) IS COVERED BY THE EXTANT CIRCULAR ISSUED U/S. 268A(1) AND, THUS, LIAB LE TO BE WITHDRAWN OR DISMISSED IN LIMINE AS NOT MAINTAINABLE IN VIEW OF SECTION 268A(4). TH AT ONLY WOULD SATISFY THE MANDATE OF LAW, REQUIRING AN APPELLATE AUTHORITY TO HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED BY THE BOARD U/S. 268A(1) FROM TIME TO TIME. IN FACT, THE AUTHORITY CONFERRED BY LAW ON THE BOARD FOR FIX ING MONETARY LIMITS IS FOR THE PURPOSE OF REGULATING THE FILING OF APPEALS BY IT B EFORE AN APPELLATE AUTHORITY, WHICH IT DOES AS A POLICY INSTRUMENT OF THE UNION OF INDIA. THIS AUTHORITY IS QUITE APART FROM AND INDEPENDENT OF THAT GRANTED U/S.119, WHICH IS F OR THE PURPOSE OF THE ADMINISTRATION OF THE ACT. SUCH APPEALS AS COVERED BY THE BOARD CI RCULAR U/S. 268A(1) R/W S. 268A(5), MUST, THEREFORE, NOT HAVE BEEN FILED IN THE FIRST P LACE. AS AFORE-NOTED, THE CIRCULARS ENHANCING THE MONETARY LIMITS FROM TIME TO TIME, AS ALSO MAKING THEM APPLICABLE TO THOSE SINCE FILED, I.E., PENDING APPEALS, APPEALS/R EFERENCES VALIDLY FILED MAY GET OUSTED IN TIME ON ACCOUNT OF THE ENHANCED LIMIT. EITHER WA Y, HAVING BEEN ALREADY FILED, SUCH APPEALS NEED TO BE IDENTIFIED. THE PRIMARY DUTY OF THIS IDENTIFICATION IS ON THE REVENUE; THE BOARD HAVING BEEN THEREBY EMPOWERED BY LAW TO LIMIT THE DISCRETION OF AN INCOME TAX AUTHORITY IN RESPECT OF FILING OF AN APPEAL/APPLICATION FOR REFERENCE. THE REVENUE, ACCORDINGLY, PER INTERNAL INSTRUCTIONS/DIR ECTIONS, INSTRUCTS ITS FIELD OFFICERS TO DO SO, I.E., AS AND WHEN A NEW CIRCULAR, IN SUPERSE SSION OR MODIFICATION OF AN EARLIER ONE, IS ISSUED U/S. 268A(1), TO BRING THE SAME TO T HE NOTICE OF THE APPELLATE FORUMS, INTIMATING THEIR WITHDRAWAL OR NON-PRESSING THEREOF . IT IS THIS IDENTIFICATION THAT TOOK PRECEDENCE WITH THE TRIBUNAL. PERHAPS ANXIOUS TO AR RIVE AT THE ACTUAL AMOUNT LOCKED IN TAX LITIGATION BEFORE IT, IT EMBARKED ON THE SAID E XERCISE, AS PART OF A RESPONSIVE JUDICIARY, WHICH ALSO EXPLAINS THE DEPARTURE FROM T HE ESTABLISHED NORMS OF JUDICIAL HEARING. WE HAVE ALREADY OBSERVED THAT IT, IN DOING SO, ACTED WITH CIRCUMSPECTION, PROVIDING LIBERTY TO THE PARTIES IN CASE OF ANY ERR OR OR OMISSION IN DISMISSING AN APPEAL/CO THUS, BALANCING THUS THE NEED FOR RETAINI NG ONLY MAINTAINABLE TAX LITIGATION ON ITS RECORDS, WITH THE PARAMOUNT CONCERN FOR NOT CAUSING ANY PREJUDICE. IN FACT, THE ARGUMENTS EMANATING FROM BOTH THE SIDES IN THE INST ANT CASES, WITH THE ASSESSEE 11 | P A G E BRINGING ON RECORD MATERIAL, ALSO RELYING ON CASE L AW IN THE SUPPORT OF ITS CASE, ITSELF EMPHASIZES, IF ANY WAS REQUIRED, THE NEED FOR HEARI NG THE PARTIES BEFORE ISSUING ANY OPINION, EVEN AS THE SAME DOES NOT EXCLUDE MISTAKE OR OMISSION, REMOVAL OF WH ICH, THEREFORE, THE LAW PROVIDES. NO COURT OR TRIBUNAL C AN, BY ITS ACTION OR NON-ACTION, CAUSE PREJUDICE TO ANY PARTY BEFORE IT, IS A SETTLE D LEGAL PROPOSITION, I.E., ACUTUS CURIAE NEMINEM GRAVABIT , REITERATED TIME AND AGAIN BY THE APEX COURT, AS I N HONDA SIEL POWER PRODUCTS LTD. VS. CIT [2007] 295 ITR 466 (SC). IN OUR CLEAR VIEW, DISMISSAL OF THE REVENUES APPEA LS BY THE TRIBUNAL, IN VIEW OF THE AUTHORIZATION MEMO DATED 30.10.2018 ON RECOR D, CLEARLY STATING OF THE APPEAL BEING FILED, DESPITE ITS LOW TAX EFFECT, IS, IN VIE W OF CL.10(C) OF THE BOARD CIRCULAR 3/2018 DATED 11.07.2018, A CLEAR CASE OF A MISTAKE MANIFEST ON RECORD. WE HAVE ALREADY CLARIFIED THAT THE AUTHORIZATION MEMO, AN O FFICIAL DOCUMENT, CAN STILL BE SUBJECT TO VERIFICATION BY THE TRIBUNAL SO AS TO SATISFY IT SELF, WHICH ITSELF IMPLIES HAVING REGARD THERETO, WHICH THE LAW OBLIGES IT TO. 3.4 IN SUM, THE REVENUES INSTANT APPLICATIONS ARE, THEREFORE, ADMISSIBLE, AND CANNOT BE OUSTED AT THE THRESHOLD ON THE GROUND THA T NO OBJECTION RAISED BY THE LD. DR AT THE TIME OF HEARING. (ALSO SEE PARA 4.1) 3.2 NO OTHER ARGUMENT OR PLEA WAS RAISED DURING HEA RING. AS WOULD BE APPARENT, NONE OF THE DECISIONS CITED, IN VIEW OF T HE SPECIFIC FINDINGS BY THE TRIBUNAL, ARE APPLICABLE OR INDEED RELEVANT IN THE INSTANT CASE. 4. WE ACCORDINGLY, FOR THE SAME REASONS AS INFORM A S THE TRIBUNALS DECISION IN MA NOS. 03 TO 07/JAB/2020, DATED 07/9/2020, DECI DING THE SAME, IN PRINCIPLE, IN THE FAVOUR OF THE REVENUE, DECIDE LIKE-WISE, AND DIRECT RESTORATION OF THE REVENUES CAPTIONED APPEAL FOR BEING HEARD AND DECI DED ON MERITS. WE DECIDE ACCORDINGLY. 12 | P A G E 5. IN THE RESULT, THE REVENUES MISCELLANEOUS APPLI CATION IS ALLOWED. ORDER PRONOUNCED ON SEPTEMBER 28, 2020 UNDER RULE 3 4(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 SD/- SD /- (N. R. S. GANESAN) (S ANJAY ARORA) JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED: 28/09/2020 // TRUE COPY //