ITO, New Delhi V. M/s. Ranutrol Instrumentation Ltd., New Delhi

MA 120/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6896 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Department
• Bench Allotted: F
• Assessment Year: 1992-1993
• Appeal Filed On: 20-04-2011
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `FRIDAY E: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER M.A.NO.120/DEL/2011 (IN I.T.A. NO.3931/DEL/2010) ASSESSMENT YEAR : 1992-93 INCOME-TAX OFFICER, M/S. RANUTROL INSTRUMENTATION LTD., WARD 15(2), NEW DELHI. VS. 414, NEW DELHI HOUSE, 27, BARAKHAMBA ROAD, NEW DELHI. PAN: AAACR1597C (APPLICANT) (RESPONDENT) APPLICANT BY : SMT. ANUS HA KHURANA, SR. DR. RESPONDENT BY : SHRI SALIL AGGARWAL, ADVOCATE. O R D E R PER C.L. SETHI, JUDICIAL MEMBER THE PRESENT MISC. APPLICATION HAS BEEN FILED BY THE REVENUE WITH REFERENCE TO THE ORDER DATED 20.10.2010 PASSED BY T HE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH `F, NEW DELHI PERTAINING TO THE ASSESSMENT YEAR 1992-93. 2. IN THIS MISC. APPLICATION, THE REVENUE HAS SUBMI TTED THAT THE TRIBUNAL VIDE ORDER DATED 20.10.2010 HAS DISMISSED THE REVEN UES APPEAL ON THE GROUND THAT THE APPEAL OF REVENUE IS NOT MAINTAINAB LE INASMUCH AS THE TAX EFFECT INVOLVED IN THE APPEAL WAS BELOW THAN THE MO NETARY LIMIT OF 2 RS.2,00,000/- PROVIDED BY THE BOARD CIRCULAR THEN A PPLICABLE BUT THE ACTUAL TAX EFFECT IN THE PRESENT CASE WOULD BE RS.2,57,528 /-. THE TAX RATE FOR A.Y. 1992-93 IS @ 50% AND 15% SURCHARGE, HENCE THE TAX E FFECT IS RS.2,57,528/-. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. WHILE DECIDING THIS APPEAL, IT WAS FOUND BY THE TRI BUNAL THAT THE TAX EFFECT INVOLVED IN THE APPEAL WAS BELOW RS.2,00,000/-. TH E ELEMENT OF TAX RATE FOR A.Y. 1992-93 @ 50% AND 15% SURCHARGE WERE NOT TAKEN INTO ACCOUNT. IF THESE ARE TAKEN INTO ACCOUNT, THE TAX EFFECT WOULD BE RS.2,57,528/- AS POINTED OUT BY THE DEPARTMENT IN THE MISC. APPLICATION. TH US, THERE WAS A MISTAKE COMMITTED IN THE ORDER DATED 20.10.2010 WHILE DECID ING THE APPEAL. WE, THEREFORE, DELETE PARA 3 OF THE ORDER DATED 20.10.2 010 AND HOLD THAT IN THIS CASE, TAX EFFECT WAS RS.2,57,528/- EXCEEDING RS.2,0 0,000/ SPECIFIED IN THE BOARDS CIRCULAR APPLICABLE AT THAT POINT OF TIME. 4. HOWEVER, IN THE COURSE OF HEARING OF THIS MISC. APPLICATION, IT WAS POINTED OUT BY US THAT THE MONETARY LIMIT FOR FILIN G OF APPEAL BY THE DEPARTMENT BEFORE THE TRIBUNAL HAS BEEN REVISED FRO M RS.2,00,000/- TO RS.3,00,000/- VIDE INSTRUCTION NO.3/2011, F.NO.279/ MISC. 142/2007-ITJ, DATED 9 TH FEBRUARY, 2011 AND, THUS, THE TRIBUNALS ORDER REJ ECTING THE REVENUES APPEAL AS NOT MAINTAINABLE FOR BEING THE TAX INVOLVED IS BELOW THE MONETARY LIMIT OF RS.3,00,000/- SPECIFIED BY THE BO ARDS INSTRUCTION DATED 3 9 TH FEBRUARY, 2011, IS JUSTIFIED. THE AFORESAID REVIS ED BOARDS INSTRUCTION DATED 9 TH FEBRUARY, 2011 IS APPLICABLE TO THIS PENDING APPEA L ALSO AS SO HELD BY THE HONBLE JURISDICTIONAL HIGH COURT OF DELHI I N NUMBER OF CASES. OUR THIS VIEW IS ALSO SUPPORTED BY THE DECISION DATED A PRIL 19, 2011 OF HONBLE DELHI HIGH COURT IN THE BUNCH OF APPEALS, WHERE THE HONBLE HIGH COURT HAS TAKEN THE VIEW THAT INSTRUCTION BEARING NO.3/2011 D ATED 9.2.2011 SHALL APPLY TO THE OLD PENDING REFERENCES AND APPEALS AS SO HEL D BY THE DIVISION BENCH OF THE HONBLE DELHI HIGH COURT IN ITA NO.89/1999 D ECIDED ON 28.01.2011 HOLDING THAT INSTRUCTION BEARING NO.5/2008 DATED 15 .05.2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. 5. THE LEARNED DR SUBMITTED THAT THE RECENT CIRCULA R BEARING NO.3/2011 DATED 9.02.2011 IS NOT APPLICABLE TO THE PRESENT CA SE INASMUCH THE PRESENT CASE WAS DECIDED IN THE LIGHT OF MONETARY LIMIT OF RS.2,00,000/- AS THEN APPLICABLE. 6. IN THE CASE OF ASSTT. COMMISSIONER OF INCOME-TAX VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 (SC), THE HONBLE SUPREME COURT UPHELD THE DECISION OF DIVISION BENCH OF THE HONBLE GUJARAT HIGH COURT REPORTED IN (2003) 262 ITR 146, HOLDING THAT NON-CONSIDERATION OF A JUDGMENT OF THE JURISDICTIONAL HIGH COURT OR HONBL E SUPREME COURT WOULD ALSO CONSTITUTE A MISTAKE APPARENT FROM THE RECORD, REGARDLESS OF THE 4 JUDGMENT BEING RENDERED PRIOR TO OR SUBSEQUENT TO T HE ORDER PROPOSED TO BE RECTIFIED. IN THE LIGHT OF THIS DECISION, WE ARE T HEREFORE, INCLINED TO CONSIDER THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT DATED 19.04.2011 PASSED IN BUNCH OF APPEALS HOLDING THAT INSTRUCTION BEARING NO.3/2011 DATED 19.02.2011 SHALL ALSO BE APPLICABLE TO THE PENDING REFERENCES AND APPEALS. 7. IN THE LIGHT OF THE DISCUSSIONS MADE ABOVE, WE H OLD THAT OUR ORDER DISMISSING THE REVENUES APPEAL AS NOT MAINTAINABLE FOR THE REASON THAT TAX EFFECT WAS BELOW RS.2,00,000/- AS PER THEN BOARDS CIRCULAR IS UNDOUBTEDLY A MISTAKE APPARENT FROM RECORD INASMUCH AS THE TAX EF FECT IN THE PRESENT CASE WAS OF RS.2,57,528/-. WE, THEREFORE, DELETE PARA 3 OF OUR ORDER DATED 20.10.2010 AND SUBSTITUTE THE SAME BY THE FOLLOWING PARA:- 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE TAX EFFECT IN THE PRESENT CASE IS OF RS.2,57,528/- WHICH IS BELOW RS. 3,00,000/-. THE MONETARY LIMIT FOR FILING OF THE APPEAL BY THE DEPARTMENT BEFORE THE INCOME-TAX APPELLATE TRIBUNAL HAS BEEN R EVISED TO RS.3,00,000/- VIDE BOARDS INSTRUCTION NO.3/2011 DA TED 9 TH FEBRUARY, 2011. IN THE LIGHT OF DECISION OF THE JU RISDICTIONAL HIGH COURT OF DELHI IN NUMBER OF APPEALS DATED 19.4 .2011, WE HOLD THAT THE INSTRUCTION BEARING NO.3/2011 DATED 9 -02-2011 SHALL BE APPLICABLE TO THE PRESENT APPEAL. THE TAX EFFECT BEING LESS THAN RS.3,00,000/- IN THE PRESENT APPEAL, WE H OLD THAT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. W E, THEREFORE, DISMISS THIS APPEAL AS NOT MAINTAINABLE. 8. AFTER AFORESAID PARA 3, THE FOLLOWING PARA 4 SHA LL BE INSERTED:- 5 4. THE HONBLE JURISDICTIONAL DELHI HIGH COURT IN NUMBER OF APPEALS VIDE ORDER DATED 19.04.2011, HAS HELD AN D OBSERVED AS UNDER:- IT IS STATED THAT TAX IMPACT IN THE PRESENT CASES IS LESS THAN 10.00 LAKH. THE DEPARTMENT HAS RECENTLY ISSUED AN INSTRUCTION BEARING NO.3/2011 DATED 9.2.201, WHICH IS IDENTICAL TO ITS EARLIER INSTRUCTION BEARING NO.5/2008 EXCEPT THAT IN SO FAR AS THE HIGH COURT IS CONCERNED, THE MONETARY LIMIT IN RESPECT OF APPEALS, WHERE THE QUESTIONS OF LAW RAISED NEED NOT TO BE ANSWERED, HAS BEEN RAISED FROM RS.4.00 LAKH TO RS.10.00 LAKH. THE DIVISION BENCH OF THIS COURT IN ITA NO.89/1999 DECIDED ON 28.1.2011 HAS ALREADY HELD THAT THE INSTRUCTION BEARING NO.5/2008 DATED 15.5.2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. THIS PRINCIPLE WOULD, THUS, NATURALLY EQUALLY APPLY TO THE INSTANT INSTRUCTION BEARING NO.3/2011 DATED 9.2.2011, AS WELL. THE TAX EFFECT BEING LESS THAN RS.10.00 LAKH IN THE PRESENT APPEALS, THE QUESTION OF LAW DOES NO T REQUIRE TO BE ANSWERED. 9. PARA 4 SHALL ALSO BE REVISED AND SHALL BE NUMBER ED AS PARA 5. 10. IN THE RESULT, THIS MISC. APPLICATION FILED BY THE REVENUE IS DISPOSED OF IN THE MANNER AS INDICATED ABOVE. 11. THIS DECISION WAS PRONOUNCED IMMEDIATELY AFTER THE HEARING WAS OVER ON 16 TH SEPTEMBER, 2011. SD/- SD/- (SHAMIM YAHYA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH SEPTEMBER, 2011. 6 MA NO.120DEL/2011 (IN ITA NO.3931/DEL/2010) COPY OF THE ORDER FORWARDED TO:- 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.