ACIT, CC-XXI, KOLKATA, Kolkata V. M/s Central Roller Flour Mills (P) Ltd., Kolkata

MA 109/KOL/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4540 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 14-10-2015
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

M.A.NO.109/KOL/2015(A/O MA.NO.3/KOL/2015 IN ITA NO. 1785/KOL/2012)A.Y.1988-89 M/S. CENTRAL ROLLER FLOUR MILLS (P) LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI M.BALAGANESH , AM] M.A.NO.109/KOL/2015 (A/O M.A.03/KOL/2015 IN I.T.A NO. 1785/KOL/2012 ) ASSESSMENT YEA R : 1988-89 A.C.I.T., CENTRAL CIRCLE-XXI, -VS.- M/S. CE NTRAL ROLLER FLOUR KOLKATA. MILLS (P) LTD., KOLKATA. [PAN : AABCC 8240 N] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SALLONG YAD EN, ADDL. CIT FOR THE RESPONDENT : SHRI RAVI TULSIYAN, FCA DATE OF HEARING : 22.07.2016. DATE OF PRONOUNCEMENT : 22.07.2016. ORDER PER N.V.VASUDEVAN, JM THIS IS A MISCELLANEOUS APPLICATION FILED BY THE RE VENUE U/S.254(2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING FOR RECALLING OF THE ORDER DATED 7.5.2015 PASSED IN M.A.NO.3/KOL/2015 ARISING OUT OF ORDER PASSED IN ITA NO.1785/KOL/2012 DATED 16.7.2014 RELATING TO AY 1988-89 2. THE FACTS AND CIRCUMSTANCES LEADING TO THE FILI NG OF THE PRESENT M.A. ARE THAT THE AFORESAID APPEAL BY THE REVENUE WAS AGAINST THE ORD ER DATED 11.9.2012 OF CIT(A), CENTRAL-II, KOLKATA FOR AY 1988-89. BY THE SAID OR DER THE CIT(A) HAD CANCELLED THE PENALTY IMPOSED ON THE ASSESSEE U/S.271(1)( C) OF T HE ACT OF A SUM OF RS.3,93,358/-. THE ASSESSEES INCOME FROM BUSINESS WAS ESTIMATED B Y APPLYING G.P. RATE OF 15% ON THE TURNOVER OF RS.2,00,92,599/- AS THE ASSESSEE WA S ALLEGED TO BE INVOLVED IN FODDER SCAM. ULTIMATELY THE TRIBUNAL IN THE QUANTUM APPEA L SUSTAINED ADDITION ON THE BASIS OF ESTIMATION OF INCOME BY APPLYING G.P.RATE OF 7.5 % OF THE TURNOVER. THE TAX SOUGHT TO BE AVOIDED ON THE BASIS OF THE TOTAL INCOME DETE RMINED ON THE BASIS OF ADDITION M.A.NO.109/KOL/2015(A/O MA.NO.3/KOL/2015 IN ITA NO. 1785/KOL/2012)A.Y.1988-89 M/S. CENTRAL ROLLER FLOUR MILLS (P) LTD. 2 SUSTAINED BY THE ITAT WAS A SUM OF RS.3,93,385/-. PENALTY U/S.271(1)( C) OF THE ACT WAS IMPOSED ON THE ASSESSEE BEING 100% OF THE TAX S OUGHT TO BE EVADED. THE IMPOSING OF PENALTY WAS CANCELLED BY THE CIT(A) BY THE IMPUGNED ORDER BY FOLLOWING HIS PREDECESSORS ORDER IN ASSESSEES CASE IN RESPEC T OF A SIMILAR ORDER IMPOSING PENALTY FOR AY 1987-88 & 1990-91. THE TRIBUNAL HAD UPHELD THE ORDER OF CIT(A) CANCELLING THE ORDER OF THE AO IMPOSING PENALTY ON THE ASSESSEE U/S.271(1)(C ) OF THE ACT FOR AY 1987-88 & 1990-91. FOLLOWING THE TRIBUN AL ORDER FOR AY 1987-88 & 1990-91, THE TRIBUNAL UPHELD THE ORDER OF THE CIT(A ) THAT WAS IMPUGNED IN THE AFORESAID APPEAL. THE ORDER OF THE TRIBUNAL WAS PA SSED ON 16.7.2014. 3. THE REVENUE FILED M.A.NO.3/KOL/2015 PRAYING THA T THE ORDER DATED 16.7.2014 SHOULD BE RECALLED AS THE SAID ORDER SUFFERED FROM A MISTAKE APPARENT ON THE FACE OF THE RECORD. THE REVENUE POINTED OUT THAT AS AGAINST TH E ORDER OF THE TRIBUNAL IN ASSESSEES CASE UPHOLDING THE ORDER OF THE CIT(A) CANCELLING P ENALTY IMPOSED U/S.271(1)(C) OF THE ACT FOR AY 1987-88 & 1990-91, THE REVENUE HAD P REFERRED APPEAL BEFORE THE HONBLE CALCUTTA HIGH COURT AND THE HONBLE CALCUTT A HIGH COURT IN GITAT NO.168 OF 2013 GA NO.3194 OF 2013 BY ORDER DATED 26.6.2014 WAS PLEASED TO REVERSE THE ORDER OF THE ITAT AND SUSTAIN THE ORDER OF THE AO I MPOSING PENALTY ON THE ASSESSEE U/S.271(1)( C) OF THE ACT. SINCE THE PENALTY WAS I MPOSED ON IDENTICAL ADDITION IN AY 1988-89 AND SINCE IN RESPECT OF SIMILAR ADDITION MA DE IN AY 1987-88, THE HONBLE CALCUTTA HIGH COURT HAS SUSTAINED IMPOSITION OF PEN ALTY, THE REVENUE FELT THAT THE ORDER OF THE ITAT DATED 16.7.2014 PASSED BY THE ITA T SUFFERS FROM A MISTAKE APPARENT ON THE FACE OF THE RECORD AND SHOULD BE RE CTIFIED BY RECALLING THE SAME AND ALLOWING THE APPEAL OF THE REVENUE. ACCORDINGLY M .A.NO.03/KOL/2012 WAS FILED BY THE REVENUE. 4. BY AN ORDER DATED 7.5.2012 THE SAID M.A.NO.3/KO L/2012 WAS DISMISSED BY THE ITAT FOR THE REASON THAT THE TAX EFFECT IN THE APPE AL BY THE REVENUE WAS LESS THAN RS.4 LACS AND IN VIEW OF THE CBDT INSTRUCTION NO.5/2014 DATED 10.7.2014, THE APPEAL BY M.A.NO.109/KOL/2015(A/O MA.NO.3/KOL/2015 IN ITA NO. 1785/KOL/2012)A.Y.1988-89 M/S. CENTRAL ROLLER FLOUR MILLS (P) LTD. 3 THE REVENUE WAS NOT MAINTAINABLE AND THEREFORE THER E WAS NO REASON TO RECALL THE ORDER DATED 16.7.2014. 5. IN THE PRESENT MISCELLANEOUS APPLICATION THE RE VENUE HAS POINTED OUT THAT IN CBDT INSTRUCTION NO.5/2004 IN PARA-5 IT HAS BEEN MENTION ED AS FOLLOWS: 5. ............. HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH C OURT OR APPELLATE AUTHORITY, WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON I SSUES IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILED IN RESPECT O F ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETA RY LIMITS IN ANY OF THE YEAR(S), IF IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED. IN CASE WHERE A COMPOSI TE ORDER/JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WIT H SEPARATELY. ACCORDING TO THE REVENUE SINCE PENALTY WAS ALSO IMP OSED U/S.271(1)( C) OF THE ACT FOR AY 1989-90, THE TAX EFFECT OUGHT TO HAVE BEEN COMPU TED TAKING BOTH THE AY 1988-89 & 1989-90 INTO CONSIDERATION. IF IT IS DONE SO, TH EN THE APPEAL FOR AY 1988-89 OUGHT NOT TO HAVE BEEN DISMISSED FOR LOW TAX EFFECT. THE REVENUE HAS ACCORDINGLY PRAYED THAT THE ORDER IN M.A.3/KOL/12 SHOULD BE RECALLED A ND THE APPEAL OF THE ASSESSEE DECIDED ON MERITS. 6. THE LEARNED DR REITERATED THE STAND OF THE REVE NUE AS CONTAINED IN THE MISCELLANEOUS APPLICATION. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT PARA-5 OF THE CIRCULAR REFERS ONLY TO A COMPO SITE ORDER AND HE POINTED OUT THAT IN THE PRESENT CASE THERE WAS NO COMPOSITE ORDER PASSE D BY THE CIT(A) FOR AY 1988-89 & 1989-90 AND THEREFORE THE PRESENT MISCELLANEOUS A PPLICATION IS MISCONCEIVED AND HAS TO BE DISMISSED. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AR E OF THE VIEW THAT AS PER PARA-5 OF THE CBDT INSTRUCTION NO.5 DATED 10.7.2014, APPEAL C AN BE FILED FOR ANY AY EVEN THE TAX EFFECT IS LESS THAN THE MONETARY LIMITS PROVIDE D THE ISSUE IN QUESTION IS COMMON M.A.NO.109/KOL/2015(A/O MA.NO.3/KOL/2015 IN ITA NO. 1785/KOL/2012)A.Y.1988-89 M/S. CENTRAL ROLLER FLOUR MILLS (P) LTD. 4 AND ARISES OUT OF A COMPOSITE ORDER PASSED BY THE A PPELLATE AUTHORITY AND THE TAX EFFECT IN ONE OF THE AYS IN THAT COMPOSITE ORDER IS BELOW THE MONETARY LIMIT FOR FILING APPEAL TO THE RELEVANT APPELLATE AUTHORITY. IN THE PRESEN T CASE THE ORDER OF THE CIT(A) FOR AY 1988-89 & 1989-90 IS NOT A COMPOSITE ORDER AND THER EFORE THE BENEFIT OF PARA-5 OF THE CBDT INSTRUCTIONS IS NOT AVAILABLE TO THE REVENUE. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THIS APPLICATION BY THE REVENUE A ND THE SAME IS DISMISSED. 8. IN THE RESULT, THE M.A. IS DISMISSED. O RDER PRONOUNCED IN THE COURT ON 22.07.2016. SD/- SD/- [M.BALAGANESH ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22.07.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. CENTRAL ROLLER FLOUR MILLS (P)LTD., 14A, FMC FORTUNA, 5 TH FLOOR, 234/3A, A.J.C.BOSE ROAD, KOLKATA-700020. 2. A.C.I.T., CENTRAL CIRCLE-XXI, KOLKATA. 3. CIT(A)- CENTRAL-II, KOLKATA. 4. CIT, CEN TRAL-II, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES