Income-tax Officer, Nashik V. Shri Murlidhar S. Gholap (Indl.), Nashik

MA 149/PUN/2011

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1936 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-04-2012
• Assessment Year: misc
• Appeal Filed On: 22-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Rectification of order; Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHE B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER MA NO.149/PN/2011 (ARISING OUT OF ITA NOS.828 TO 830/PN/2007) (ASSTT. YRS. : 1995-96, 1996-97 & 1996-97) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE- 1, NASHIK . APPELLANT VS. SHRI MURDLIDHAR SHANKAR GHOLAP (INDL.), SHIVSHANKAR, NEAR DASAK BRIDGE, DASAKGAON, NASHIK ROAD, PAN : NOT AVAILABLE . RESPONDENT DEPARTMENT BY : MR. S.P. WALIMBE ASSESSEE BY : MR. NIKHIL PATHAK DATE OF HEARING : 04-04-2014 DATE OF PRONOUNCEMENT : 07-04-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN F ILED BY THE REVENUE WITH REGARD TO AN ORDER OF THE TRIBUNAL DAT ED 29.04.2011 WHEREBY THE APPEALS OF THE REVENUE WERE DISMISSED ON THE GR OUND THAT THE TAX EFFECT INVOLVED IN DISPUTE WAS LESS THAN RS.3 LACS FOLLOWI NG THE CBDT INSTRUCTION NO. 3/2011 DATED 09.02.2011. 2. NOW, THE REVENUE HAS MOVED THE PRESENT APPLICATI ON FOR RECTIFICATION OF THE ORDER DATED 29.04.2011 (SUPRA) ON THE GROUND TH AT THE CBDT INSTRUCTION NO. 3/2011 DOES NOT APPLY TO THOSE APPEALS FILED PR IOR TO THE DATE OF INSTRUCTION I.E. 09.02.2011 AND IN SUPPORT, A REFERENCE HAS BEE N MADE TO THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SU RYA HERBAL LTD. DATED 29.08.2011. 3. AT THE TIME OF HEARING, IT EMERGED THAT A SIMILA R SITUATION WAS RAISED BEFORE THE HONBLE JURISDICTIONAL HIGH COURT OF BOM BAY IN THE CASE OF CIT VS. MA NO.149/PN/2011 M/S. SEVAK PHARMA PVT. LTD. IN INCOME TAX APPEAL (L ) NO. 396 OF 2013 DATED 22.03.2013. IN THE CASE OF M/S. SEVAK PHARMA PVT. LTD., THE TRIBUNAL HAD DISMISSED THE REVENUES APPEAL AS THE TAX EFFECT WA S LESS THAN RS.3 LACS IN VIEW OF THE CBDT INSTRUCTION NO. 3/2011 DATED 09.02 .2011. THE TRIBUNAL HAD HELD THAT THE CBDT INSTRUCTION DATED 09.02.2011 WOU LD APPLY EVEN TO THE PENDING CASES. THE REVENUE THEREAFTER MOVED A MISC ELLANEOUS APPLICATION ON THE BASIS OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SURYA HERBAL LTD. (SUPRA) WHICH WAS AGAIN DISMISSED BY THE TRIBUNAL. THE SAID ORDER OF THE TRIBUNAL HAS SINCE BEEN AFFIRMED BY THE HONBLE HIGH COURT AND THE FOLLOWING DISCUSSION IS RELEVANT :- 2. ON 18.11.2011, THE TRIBUNAL DISMISSED THE REVEN UES APPEAL HAVING AS THE TAX EFFECT WAS LESS THAN RS.3 LACS. THIS WAS IN VIEW OF THE CBDT INSTRUCTIONS NO.3/2011 DATED 09.02.2011 WHICH HAD REVISED THE MONETARY LIMIT FOR FILING AN APPEAL TO TRIBUNAL TO RS.3 LACS. THE TRIBUNAL FOLLOWED THE DECISION OF THIS COURT IN THE MATTER O F CIT VS. MADHUKAR INAMDAR (HUF) REPORTED IN 318 ITR 149 WHEREIN IT HAS BEEN H ELD THAT CBDT INSTRUCTIONS FIXING MONETARY LIMIT FOR FILING AN AP PEAL TO TRIBUNAL, WOULD APPLY EVEN TO THE PENDING CASES. 3. THE REVENUE THEREAFTER MOVED A MISC. APPLICATION FOR RECTIFICATION OF ORDER DATED 18.11.2011 BEFORE THE TRIBUNAL. THIS APPLICATION FOR RECTIFICATION WAS ON THE BASIS OF THE SUPREME C OURT DECISION IN THE MATTER OF CIT VS. SURYA HERBAL LTD. RENDERED ON 29.08.2011 WHEREIN IT HAS BEEN HELD THAT CBDT INSTRUCTIONS NO. 3/2011 WOULD NOT APPLY I PSO FACTO. THE APEX COURT HELD THAT ABOVE INSTRUCTIONS WOULD NOT APPLY WHERE THE MATTER HAS CASCADING EFFECT OR RAISES A COMMON PRINCIPLE INVOL VING A LARGE NUMBER OF MATTERS. THE TRIBUNAL DISMISSED THE MISC. APPLICAT ION FOR RECTIFICATION BY THE IMPUGNED ORDER DATED 05.10.2012 BY RELYING UPON THE DECISION OF THIS COURT IN THE MATTER OF MADHUKAR INAMDAR (HUF) (SUPRA). 4. THE GRIEVANCE OF THE REVENUE IS THAT THE TRIBUNA L OUGHT TO HAVE ENTERTAINED THE APPEAL BY FOLLOWING THE DECISI ON OF THE APEX COURT IN THE MATTER OF SURYA HERBAL LTD. (SUPRA). HOWEVER, THE REVENUE HAS NOT BEEN ABLE TO POINT OUT BEFORE US ANY OF CIRCUMSTANCES AS LAID DOWN BY THE SUPREME COURT IN THE MATTER OF SURYA HERBAL LTD. (SUPRA) BE ING APPLICABLE TO THIS CASE WHICH WOULD LEAD TO NON APPLICATION OF CBDT INSTRUC TIONS NO. 3/2011. 5. IN THE ABOVE CIRCUMSTANCES, WE SEE NO REASON TO ENTERTAIN THE PROPOSED QUESTION OF LAW. 4. THE SITUATION BEFORE US IS IDENTICAL TO THAT IN THE CASE OF M/S. SEVAK PHARMA PVT. LTD. (SUPRA). IN THE PRESENT CASE ALSO THE TRIBUNAL DISMISSED THE APPEALS OF THE REVENUE VIDE ORDER DATED 29.04.2011 (SUPRA) BY NOTICING THAT THE MONETARY LIMITS CONTAINED IN CBDT INSTRUCTION N O. 3/2011 (SUPRA) WOULD APPLY EVEN TO THE PENDING CASES, FOLLOWING THE JUDG MENT OF THE HONBLE MA NO.149/PN/2011 BOMBAY HIGH COURT IN THE CASE OF CIT VS. MADHUKAR K . INAMDAR (HUF), 318 ITR 149 (BOM). PRESENTLY, THE ONLY PLEA RAISED BEF ORE US IS BASED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F SURYA HERBAL LTD. (SUPRA), WHICH HAS BEEN CONSIDERED BY THE HONBLE H IGH COURT IN THE CASE OF M/S. SEVAK PHARMA PVT. LTD. (SUPRA). THEREFORE, FO LLOWING THE PRECEDENT IN THE CASE OF M/S. SEVAK PHARMA PVT. LTD. (SUPRA), TH E PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS LIABLE TO BE DI SMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH APRIL, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 07 TH APRIL, 2014 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, NASHIK; 4) THE CIT-I, NASHIK; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE