Income Tax Officer, Singrauli V. Shri Rajeev Shukla, Singrauli

MA 11/JAB/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5843 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 24-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P D CHOUGALE
• Assessee Lawyers: SA
• Keywords: Audit objection; Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH , JABALPUR BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER M.A. NO.11/JAB/2017 [IN ITA NO. 217/JAB/2016] ASSESSMENT YEAR: 2007 - 08 INCOME TAX OFFICER SINGRAULI V. SH RI RAJEEV SHUKLA PROP. M/S ALLIANCE ASSOCIATES NEAR CHRIST JYOTI SCHOOL SINGRAULI T AN /PAN : ATSPS1990A (APP LICA NT) (RESPONDENT) APP LIC ANT BY: SHRI P. D. CHOUGALE, D.R. RESPONDENT BY: S/SHRI SAPAN USRATHE AND K.N.G. PILLAI, ADVOCATES DATE OF HEARING: 05 04 201 9 DATE OF PRONOUNCEMENT: 24 04 201 9 O R D E R PER A. D. JAIN, V.P . : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL 21/4/2017 IN I.T.A. NO. 217/JAB/2016 WITH THE SUBMISSION THAT THE TRIBUNAL, FOLLO WING THE INSTRUCTIONS OF THE BOARD, HAS DISMISSED THE APPEAL OF THE REVENUE HAVING HELD THAT THE TAX EFFECT INVOLVED IN THE APPEAL IS BELOW RS. 10 LAKH . 2. THE LD. D.R. CONTENDED THAT THE TRIBUNAL , WITHOUT GOING INTO THE MERITS OF THE CASE, HAS DISMISSED TH E APPEAL OF THE REVENUE ON LOW TAX EFFECT , BUT THERE IS AN ACCEPTED AUDIT OBJECTION , THEREFORE, THE APPEAL SHOULD HAVE BEEN HEARD ON MERIT. REFERRING TO PARA 8 OF THE CBDT CIRCULAR NO.21/2015 DATED 10/12/2015, THE LD. D.R. SUBMITTED THAT WHERE REVENUE AUD IT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, THE SAME SHOULD BE DECIDED ON MERITS. HE ACCORDINGLY M.A. NO.11/JAB/2017 PAGE 2 OF 4 PRAYED THAT THE ORDER OF THE TRIBUNAL MAY BE RECALLED , AS THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. 3. THE LD. A.R. OF THE ASSESSEE, ON THE OTHER HAND, CONTENDED THAT THE SUBMISSION OF THE REVENUE THAT ITS APPEAL FALLS UNDER THE EXCEPTION MENTIONED IN CLAUSE 8(C) OF THE CBDT CIRCUL AR NO.21/2015, CANNOT BE ACCEPTED AT THIS STAGE AS THIS GROUND WAS NEVER RAISED NOR OBJECTED DURI NG THE COURSE OF HEARING, THEREFORE, THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL . THE LD. A.R. OF THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. CONCORD PHARMACEUTICALS 317 ITR 39 5 (GUJ). 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL VIS - - VIS THE MISCELLANEOUS APPLICATION, WE ARE OF THE VIEW THAT UNDISPUTEDLY THE TAX EFFECT INVOLVED IN TH E APPEAL FILED BY THE REVENUE IS LESS THAN RS. 10 LAKHS AND THE APPEAL OF THE REVENUE WAS DISMISSED FOLLOWING THE INSTRUCTION OF THE CBDT VIDE CIRCULAR NO.21/2015 DATED 10/12/2015 . THROUGH THIS MISCELLANEOUS APPLICATION, THE REVENUE HAS RAISED A GROUND THAT THERE IS AN ACCEPTED AUDIT OBJECTION AND THEREFORE, THE APPEAL IS TO BE DECIDED ON M ERIT AS PER CLAUSE 8(C) OF THE CBDT CIRCULAR REFERRED TO ABOVE. IN THE CASE OF CIT VS. CONCORD PHARMACEUTICALS (SUPRA), THE HON'BLE GUJARAT HIGH COURT HELD AS UNDER: - 27. THERE IS NO DISPUTE ABOUT THE FACT THAT WHERE A SUBSTANTIAL QUESTION OF LAW OF IM PORTANCE IS INVOLVED OR WHERE A QUESTION OF LAW IS REPEATEDLY ARISING OR WHERE THE ISSUE IS COVERED BY THE JUDGMENT OF TERRITORIAL HIGH COURT OR SUPREME COURT, THE TRIBUNAL WILL HAVE TO DECIDE THE APPEAL ON THE MERITS AND IN TERMS OF THE LAW DECLARED BY TH E SUPREME COURT OR BY THE TERRITORIAL HIGH COURT. HOWEVER, ON THIS GROUND THE MATTERS CANNOT BE REMANDED TO THE TRIBUNAL DIRECTING THE TRIBUNAL TO DECIDE THE SAME AFRESH. IF NO OBJECTIONS ARE RAISED BY THE DEPARTMENTAL REPRESENTATIVE AT THE TIME OF HEARING OF THE APPEAL AGAINST THE APPLICABILITY OF THE CIRCULAR DESPITE THERE BEING AN EXCEPTION, THE DEPARTMENT HAS MISSED THE BUS AND SECOND INNING CANNOT BE GRANTED FOR THAT PURPOSE. HOWEVER, IN MATTERS WHERE SUCH OBJECTIONS ARE RAISED AND DESPITE THOSE OBJECT IONS OR WITHOUT DEALING WITH THOSE OBJECTIONS IF THE TRIBUNAL HAS DISMISSED THE APPEAL ONLY M.A. NO.11/JAB/2017 PAGE 3 OF 4 ON THE GROUND OF LOW TAX EFFECT, IN SUCH MATTER, AN INDULGENCE IS REQUIRED TO BE SHOWN BY THIS COURT AND FOR THIS LIMITED PURPOSE, THE DEPARTMENT IS PERMITTED TO MO VE AN APPROPRIATE APPLICATION BEFORE THE TRIBUNAL FOR DECIDING THE APPEAL ON THE MERIT. 28. 29. CONSIDERING ALL THE AFORESAID ISSUES WE DISMISS ALL THESE TAX APPEALS RESERVING LIBERTY TO THE DEPARTMENT ONLY ON THOSE CASES TO APPLY TO THE TRIBUNAL TO DECIDE THE APPEAL ON THE MERITS WHERE THE OBJECTIONS WERE RAISED BEFORE THE TRIBUNAL EITHER IN THE APPEAL MEMO OR AT THE TIME OF HEARING OF APPEAL RAISING A SPECIFIC CONTENTION THAT A PARTICULAR APPEAL IS COVERED BY AN EXCEPTION AND DESPITE THIS OBJECTION THE TRIBUNAL HAS NOT DEALT WITH THE SAID CONTENTION AND DISMISSED THE APPEAL ON THE GROUND OF LOW TAX EFFECT. IT IS EXPECTED FROM THE TRIBUNAL TO CONSIDER THIS BROAD PARAMETERS WHILE APPLYING THE RELEVANT CIRCULAR TO THE FACTS OF THE CASE A T THE TIME OF DECIDING APPEALS. 5. IN VIEW OF THE AFORESAID JUDGMENT, IF THE APPEAL FILED BY THE REVENUE IS ON LOW TAX EFFECT AND THE REVENUE HAS NOT RAISED THE OBJECTIONS BEFORE THE TRIBUNAL EITHER IN THE APPEAL MEMO OR AT THE TIME OF HEARING OF APPEAL , RAISING A SPECIFIC CONTENTION THAT THE PARTICULAR APPEAL IS COVERED BY AN EXCEPTION, SUCH APPEAL IS LIABLE TO BE DISMISSED ON LOW TAX EFFECT. THEREFORE, WE FIND NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 21/4/2017 . THEREFORE, FINDING N O MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE, THE SAME IS DISMISSED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(4) OF THE ITAT RULES , 1963, BY PUTTING ON NOTICE BOARD ON 2 4/4/2019 . SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 24 /0 4 / 201 9 JJ: 2304 M.A. NO.11/JAB/2017 PAGE 4 OF 4 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR