ITO, WD-WD-2(3), KOLKATA, Kolkata V. M/s J. D. Enterprises Pvt. Ltd., Kolkata

MA 119/KOL/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4534 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 02-11-2015
• Court: TRIBUNAL
• Department Lawyers: RJAT KUMAR KUREEL
• Keywords: Tax effect

Judgement Text

1 M.A.NO.119/KOL/2015 A/O ITA NO.146/KOL/2014-M/S.J.D .ENTERPRISES PVT.LTD A.Y.2002-03 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] M.A.NO.119/KOL/2015 A/O ITA NO.146/KOL/2014 ASSESSMENT YEAR : 2002-03 I.T.O., WARD-2(3) -VERSUS- M/S. J.D.ENTERPRISES P VT. LTD., KOLKATA KOLKATA (PAN:AAACJ 6512 F) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI RJAT KUMAR KUREEL, JCIT FOR THE RESPONDENT: SHRI NIRMAL KAUSHIK, FCA DATE OF HEARING : 08.07.2016. DATE OF PRONOUNCEMENT : 08.07.2016. ORDER PER N.V.VASUDEVAN, JM: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE R EVENUE U/S 254(2) OF THE ACT PRAYING THAT THE ORDER OF THE TRIBUNAL DATED 09 .07.2015 SHOULD BE RECALLED AS IT SUFFERS FROM A MISTAKE APPARENT IN THE FACE OF THE RECORD. 2. IN THE IMPUGNED ORDER THE TRIBUNAL BASED ON TH E CBDT INSTRUCTION NO.5/2014 DATED 10.07.2014 WHICH PROVIDED THAT THE TAX EFFECT IN THE APPEALS BY THE REVENUE FOR APPEALS BEFORE THE TRIBUNAL SHOULD BE RS.4 LAKHS AN D ABOVE DISMISSED THE APPEAL BY THE REVENUE BY OBSERVING THAT THE TAX EFFECT IN THE APPEAL IS LESS THAN RS.4 LAKHS. 3. IN THIS MISCELLANEOUS APPLICATION THE REVENUE HAS POINTED OUT THAT THE APPEAL IN QUESTION WAS FILED ON 24.01.2014 BUT THE CBDTS INS TRUCTION NO.5/2014 CAME INTO EFFECT ONLY FROM 10.07.2014. THEREFORE THE MONETARY LIMIT OF RS.4 LAKHS WILL NOT BE APPLICABLE TO THE PRESENT APPEAL FILED BY THE REVEN UE AND THAT THE APPEAL PREFERRED BY THE REVENUE WAS WITHIN THE MONETARY LIMITS PRESCRIB ED FOR FILING APPEALS BEFORE THE 2 M.A.NO.119/KOL/2015 A/O ITA NO.146/KOL/2014-M/S.J.D .ENTERPRISES PVT.LTD A.Y.2002-03 TRIBUNAL WHEN THE APPEAL WAS FILED BY THE REVENUE B EFORE THE TRIBUNAL. THE REVENUE HAS THEREFORE PRAYED FOR RECALLING OF THE SAID ORDE R OF THE TRIBUNAL. 4. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR AND THE LD. COUNSEL FOR THE ASSESSEE. IT IS NO DOUBT TRUE THAT THE CBDT INSTRUC TION NO.5/2014 IS NOT APPLICABLE TO THE PRESENT APPEAL FILED BY THE REVENUE AS THE APPE AL OF THE REVENUE FILED BEFORE THE TRIBUNAL ON 24.01.2014 PRIOR TO THE COMING INTO FOR CE OF THE AFORESAID CBDT CIRCULAR. NEVERTHELESS RECENTLY THE CBDT VIDE CIRCULAR NO.21/ 2015, DATED 10TH DECEMBER, 2015, HAS INCREASED THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COUR TS AND SLP BEFORE SUPREME COURT. THE REVISED MONETARY LIMITS LAID DOWN IN PARA-3 OF THIS CIRCULAR AND THE MANNER OF COMPUTING TAX EFFECT AS LAID DOWN IN PARA -4 OF THIS CIRCULAR ARE AS FOLLOWS: 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED I N CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: - SL. NO. APPEALS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS) 1. BEFORE APPELLATE TRIBUNAL 10,00,000/- 2. BEFORE HIGH COURT 20,00,000/- 3. BEFORE SUPREME COURT 25,00,000/- IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE. FILIN G OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, 'TAX EFFECT' MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CH ARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS 'D ISPUTED ISSUES'). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS T HE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RE TURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX O N DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 3 M.A.NO.119/KOL/2015 A/O ITA NO.146/KOL/2014-M/S.J.D .ENTERPRISES PVT.LTD A.Y.2002-03 5. IN PARA-10 OF THE SAID CIRCULAR IT HAS FURTHER BEEN CLARIFIED THAT THE REVISED MONETARY LIMITS WILL APPLY RETROSPECTIVELY. THE RE LEVANT PARA-10 OF THE CIRCULAR READS THUS: 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSE D. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 6. IN THE PRESENT CASE, THE TAX EFFECT IN THIS AP PEAL BY THE REVENUE IS ADMITTEDLY LESS THAN RS.10,00,000/-. THOUGH THIS APPEAL HAD B EEN FILED BY THE REVENUE PRIOR TO THE ISSUE OF THE CIRCULAR OF THE CBDT AND WAS WITHI N THE MONETARY LIMIT IN THE FORM OF TAX EFFECT FOR FILING APPEALS BEFORE TRIBUNAL, W HEN THE APPEAL WAS FILED, IN VIEW OF PARA-10 OF THE CIRCULAR OF CBDT, EVEN SUCH APPEALS WILL BE GOVERNED BY THE NEW MONETARY LIMITS LAID DOWN IN THE CBDT CIRCULAR NO.2 1/2015 REFERRED TO ABOVE. CONSEQUENTLY, THE APPEAL FILED BY THE REVENUE WOULD NOT BE MAINTAINABLE AS IT WOULD BE CONTRARY TO CIRCULAR NO.21/2015. 7. IN VIEW OF THE AFORESAID CIRCULAR THE APPEAL OF THE REVENUE EVEN IF RESTORED ON THE BASIS OF THIS MISCELLANEOUS APPLICATION WILL HAVE T O BE DISMISSED AS THE TAX EFFECT IN THE PRESENT APPEAL IS ADMITTEDLY LESS THAN RS.10 LA KHS. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THERE IS NO MERIT IN THE MISCELLANEOU S APPLICATION FILED BY THE REVENUE. ACCORDINGLY THE SAME IS DISMISSED. 8. IN THE RESULT THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 08.07.2016. SD/- SD/- [M.BALAGANESH ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08.07.2016. [RG PS] 4 M.A.NO.119/KOL/2015 A/O ITA NO.146/KOL/2014-M/S.J.D .ENTERPRISES PVT.LTD A.Y.2002-03 COPY OF THE ORDER FORWARDED TO: 1.M.S, J.D. ENTERPRISES PVT. LTD., 2B, GANESH CHAND RA AVENUE, 3 RD FLOOR., KOLKATA- 700013. 2. I.T.O., WARD-2(3), KOLKATA 3. CIT(A)-XIV, KOLKATA 4. CIT-I, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES