The DCIT, Circle-4(1)(1), Ahmedabad V. M/s. Sterling Enterprises Ltd., Ahmedabad

MA 105/AHD/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5571 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1995-1996
• Appeal Filed On: 12-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Tax effect
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER MA NOS.105, 106 AND 107/AHD/2019 (IN ./ IN ITA NOS.1089, 1091 & 1092/AHD/2017) ( / ASSTT. YEARS: 1995-96, 2001-02 & 2002-03 RESPECTIVE LY) THE DCIT CIRCLE-4(1)(1) AHMEDABAD / VS. M/S. STERLING ENTERPRISES LTD. SUNRISE CENTRE, OPP. DRIVE-IN-CINEMA AHMEDABAD ./ ./ PAN/GIR NO. : AACCS 6819 A ( / APPLICANT ) .. ( / RESPONDENT ) / APPLICANT BY : SHRI L.P. JAIN, SR.DR / RESPONDENT BY : SHRI ANIL KSHATRIYA, AR / DATE OF HEARING 06/09/2019 !'# / DATE OF PRONOUNCEMENT 16 /10/2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE REVENUE BY WAY OF THESE THREE MISCELLANEOU S APPLICATIONS IS SEEKING TO RECALL THE ORDER PASSED BY THE ITAT I N ITA NOS. 1089/AHD/2017, 1091/AHD/2017 AND 1092/AHD/2019 DATE D 27-07- 2018 AS THERE IS A MISTAKE APPARENT FROM RECORD THE REIN. 2. THE LEARNED DR BEFORE US SUBMITTED THAT THE ITAT HAS DISMISSED THE APPEAL DUE TO LOW TAX EFFECT IN PURSUANCE TO TH E CBDT CIRCULAR NO. 3 OF 2018. HOWEVER, LATER ON, IT WAS FOUND THAT THE IMPUGNED CASE FALLS MA NOS.105, 106, 107/AHD/2019 (IN ITA NOS.1089, 1091 & 1092/AHD/2017) DCIT VS. STERLING ENTERPRISE LTD. ASST.YEARS - 1995-96,2001-02 &1092/AHD/2019 - 2 - UNDER THE EXCEPTION AS PROVIDED IN PARAGRAPH 5 OF C BD THE CIRCULAR NO. 3/2018 DATED 11 TH AUGUST-2018 WHICH READS AS UNDER: IN CASE OF 4 COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT AR AND COMMON ISSUE IN MORE THAN ONE ASSESSMENT, APPEAL SH ALL BE FILED IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE Y EAR(S) 3. IN VIEW OF THE ABOVE, THE LEARNED DR FOR THE REVENUE SUBMITTED THAT THE IMPUGNED CIT (A) ORDER WAS A COMPOSITE ORDER FO R ASSESSMENT YEARS 1995-96, 1997-98, 2001-02 AND 2002 3 AND THE ISSUES INVOLVED IN ALL THE ASSESSMENT YEARS ARE SIMILAR. ACCORDINGLY, THE LEAR NED DR PRAYED TO RECALL THE ORDER PASSED BY THE ITAT UNDER THE PROVI SIONS OF SECTION 254(2) OF THE ACT ON THE GROUND THAT THERE IS A MIS TAKE APPARENT FROM RECORD. 4. ON THE OTHER HAND, THE LEARNED AR FILED A DETAILED WRITTEN SUBMISSION ALLEGING THAT THE MA FILED BY THE REVENU E IS NOT MAINTAINABLE ON VARIOUS REASONS. THE LD. AR INTER-ALIA SUBMITTED THAT THE EXCEPTION PROVIDED IN THE CBDT CIRCULAR NO. 3 OF 2018 AS ALLE GED BY THE REVENUE HAS BEEN TAKEN AWAY BY THE CBDT IN ITS CIRCULAR ISS UED RECENTLY BEARING NO. 17/2019 DATED 8 AUGUST 2019. THE CBDT HAS SUBST ITUTED EARLIER PARAGRAPH 5 OF THE CBDT CIRCULAR NO. 3/2018 IN THE RECENT CIRCULAR WHICH READS AS UNDER: MA NOS.105, 106, 107/AHD/2019 (IN ITA NOS.1089, 1091 & 1092/AHD/2017) DCIT VS. STERLING ENTERPRISE LTD. ASST.YEARS - 1995-96,2001-02 &1092/AHD/2019 - 3 - 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX E FFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED IS SUES IN THE CASE OF EVERY ASSESSEE. IF IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPECIFIE D IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT Y EAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPEC IFIED IN PARA 3. FURTHER, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COU RT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT Y EAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR NO APPEAL S HALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CAS E WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, E ACH ASSESSEE SHALL BE DEALT WITH SEPARATELY 5. IN VIEW OF THE ABOVE, THE LEARNED AR SUBMITTE D THAT EVEN IF THE APPEALS, DISMISSED DUE TO LOW TAX EFFECT, ARE RECAL LED FOR THE EXCEPTION PROVIDED IN THE CBDT CIRCULAR NO. 3 OF 2018 FOR HE ARING AFRESH, THEN ALSO THESE APPEALS WILL BE DISMISSED DUE TO LOW TAX EFFECT BY VIRTUE OF THE RECENT CBDT CIRCULAR AS DISCUSSED ABOVE. THE LEARNED DR IN HIS REJOINDER HAS AGREED WITH THE SUBMISSION OF THE LEARNED AR FOR THE ASSESSEE. 6. HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTI ES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, WE NO TE THAT THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF THE RECENT CBDT CIRCULAR AS DISCUSSED ABOVE . HENCE, WE DISMISS ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REV ENUE. MA NOS.105, 106, 107/AHD/2019 (IN ITA NOS.1089, 1091 & 1092/AHD/2017) DCIT VS. STERLING ENTERPRISE LTD. ASST.YEARS - 1995-96,2001-02 &1092/AHD/2019 - 4 - 7. BEFORE PARTING, IT IS PERTINENT TO NOTE THAT THE LEARNED AR FOR THE ASSESSEE HAS ALLEGED THAT THE MISCELLANEOUS APPLICA TIONS FILED BY THE REVENUE ARE NOT MAINTAINABLE ON ACCOUNT OF VARIOUS REASONS. HOWEVER, WE DO NOT DEEM IT NECESSARY TO RECORD ALL THE CONTE NTIONS OF THE LEARNED AR AND GIVE FINDING ON EACH OF THE CONTENTION OF TH E ASSESSEE BUT SUFFICE TO SAY THAT THE APPARENT MISTAKE AS HIGHLIGHTED BY THE REVENUE HAS BEEN ANSWERED IN FAVOUR OF THE ASSESSEE. 8. IN THE RESULT, ALL THE THREE MISCELLANEOUS A PPLICATIONS FILED BY THE REVENUE ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 16/10/2019 SD/- SD/- (MS. MADHUMITA ROY) (WASEEM A HMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 16/10/2019 &.., .(.. / T.C. NAIR, SR. PS MA NOS.105, 106, 107/AHD/2019 (IN ITA NOS.1089, 1091 & 1092/AHD/2017) DCIT VS. STERLING ENTERPRISE LTD. ASST.YEARS - 1995-96,2001-02 &1092/AHD/2019 - 5 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-6, AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) $%, / ITAT, AHMEDABAD 1. DATE OF DICTATION 09.10.2019 ( WORD PROCESSED BY HONBLE AM IN HIS COMPUTER BY DRA GON ) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.18.10.19 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 18.10.19 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER