DCIT, Aluva V. M/s. Nambiattukudy Agro Industries, Perumbavoor

MA 164/COCH/2009

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7712 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 02-12-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 16-10-2009
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Keywords: Depreciation; Tax effect
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND SANJAY AROR A, AM M.P. NOS. 164 & 165/COCH/2009 (ARSG. OUT OF I.T.A NOS.770 & 771/COCH/2007) ASSESSMENT YEARS:2003-04 & 2004-05 THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, ALUVA. VS. NAMBIATTUKUDY AGRO INDUSTRIES, KOOVAPPADY, PERAMBAVOOR-683544. [PAN: AACFN 6936G] (REVENUE-APPLICANT) (ASSESSEE - RESPONDENT) ASSESSEE BY SHRI MATHEW JOSEPH, CA REVENUE BY MS. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 02/12/2011 DATE OF PRONOUNCEMENT 03/02/2012 O R D E R PER SANJAY ARORA, AM: THESE ARE A SET OF TWO MISCELLANEOUS PETITIONS MOV ED BY THE REVENUE IN RESPECT OF THE APPELLATE ORDER BY THIS TRIBUNAL DATED 28-08-20 08, DISMISSING ITS APPEALS IN LIMINE DUE TO LOW TAX EFFECT, I.E., FOR BEING AT LESS THAN ` 2 LAKHS EACH. 2. THE REVENUE NOW CLAIMS THAT THE TAX EFFECT, EXCL UDING SURCHARGE, FOR THE TWO CONSECUTIVE YEARS, BEING A.Y. 2003-04 AND A.Y. 2004 -05, IS ACTUALLY AT ` 93,569/- AND ` 2,70,543/-. THE COPIES OF THE ORDERS PASSED BY THE ASSESSING OFFICER (AO) BOTH BEFORE AND AFTER THE GIVING EFFECT TO THE ORDERS OF THE FI RST APPELLATE AUTHORITY FOR BOTH THE YEARS STAND ENCLOSED BY WAY OF ANNEXURES (1 TO 4) OF ITS APPLICATION. IT IS FURTHER STATED THAT THE APPEAL IS GOVERNED BY INSTRUCTION NO. 05/2008 D ATED 15-05-2008 BY THE CBDT, WHICH ALSO DRAWS AN EXCEPTION IN CASE OF A COMPOSITE ORDE R, SO THAT APPEALS WOULD LIE FOR ALL THE YEARS IRRESPECTIVE OF THE TAX EFFECT. THE ISSUE UN DER REFERENCE IS IN RESPECT OF RATE OF M.P. NOS. 164 & 165/COCH/2009 2 DEPRECIATION EXIGIBLE, SO THAT IT WOULD GIVE RISE T O A RECURRING ISSUE QUA DEPRECIATION EXIGIBLE ON THE RELEVANT ASSET/S. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. ON THE BASIS OF THE ORDERS UNDER S. 154 OF THE INCOME-TAX ACT, 1961 (`T HE ACT HEREINAFTER) PASSED BY THE AO U/S. 250(6), WE FIND THE TAX EFFECT AS STATED BY TH E REVENUE PER ITS MISCELLANEOUS APPLICATIONS TO BE CORRECT, AND TO WHICH NO INFIRMI TY WAS ALSO POINTED OUT BY THE LD. COUNSEL DURING HEARING. FURTHER, THOUGH INCONSEQUEN TIAL, IT MAY NOTED THAT THE TAX EFFECT WOULD STAND INCREASED FURTHER IN-AS-MUCH AS THE SAM E HAS TO BE RECKONED BY INCLUDING SURCHARGE, BEING ONLY A PART OF TAX, SO THAT THE SA ID TAX EFFECT OF THE REVENUES APPEALS WOULD BE AT ` 98,247/- AND ` 2,77,307/- RESPECTIVELY FOR THE TWO CONSECUTIVE YEA RS. WITHOUT DOUBT, THEREFORE, THE REVENUES APPEAL FOR A.Y. 2004-05 WOULD STAND TO BE EXCEPTED BY THE INSTRUCTION PRECLUDING APPEALS BY T HE REVENUE FOR LOW TAX EFFECT; THE SAME BEING IN EXCESS OF ` 2 LAKHS, THE THRESHOLD LIMIT, SO THAT IT COULD NOT BE DISMISSED IN LIMINE ON THAT GROUND. IN RESPECT OF THE APPEAL FOR THE FIRST YEAR, I.E., FOR A.Y. 2003-04, THE REVENUES STAND IS WITH REFERENCE TO PARA 5 OF THE SAID INSTRUCTION, WHEREIN ITS APPEAL IS EXEMPTED FROM THE PURVIEW THEREOF IF A COMPOSITE ORDER BY THE APPELLATE AUTHORITY INVOLVES MORE THAN ONE YEAR, SO THAT REGARDLESS OF THE MONETARY LIMIT, APPEAL WOULD LIE FOR EACH OF THE YEARS. IN THE INSTANT CASE, THE ORD ER OF THE FIRST APPELLATE AUTHORITY APPEALED AGAINST DATED 19.06.2007 IS FOR THE TWO YEARS UNDER REFERENCE, SO THAT THE REVENUES ACTION IN PREFERRING APPEALS FOR BOTH THE SAID YEAR S IS CLAIMED TO BE VALID. WE HAVE PURSUED THE SAID INSTRUCTION (COPY ON RECORD), INCL UDING PARAS 3 & 5 THEREOF, WHICH ARE PARTICULARLY RELEVANT IN THE PRESENT CASE. WHAT THE REVENUE CONTENDS IS CORRECT, SO THAT IF ITS APPEAL IS NOT PRECLUDED FOR LOW TAX EFFECT FOR ANY OF THE YEARS COVERED BY THE COMPOSITE ORDER BY AN APPELLATE AUTHORITY, AS FOR ASSESSMENT YEAR 2004-05 IN THE INSTANT CASE, THE INSTRUCTION WOULD NOT OPERATE TO PRECLUDE ITS APPEAL FOR THE OTHER YEARS SO COVERED. SO, HOWEVER, THE REVENUES CLAIM IS NOT MA INTAINABLE. THIS IS AS BOTH THE APPEALS UNDER REFERENCE STAND FILED WITH THE TRIBUN AL ONLY ON 22/8/2007. THE INSTRUCTION APPLICABLE, THEREFORE, IS NO. 02/2005 DATED 24/10/ 2005, EFFECTIVE 31/10/2005. INSTRUCTION NO. 05/2008 DATED 15-05-2008 IS APPLICABLE ONLY FRO M THE DATE OF ITS ISSUE AND, AS ITSELF M.P. NOS. 164 & 165/COCH/2009 3 CLARIFIED THEREIN, AS ALSO TIME AND AGAIN BY THE HO NBLE JURISDICTIONAL HIGH COURT, WOULD ONLY APPLY TO APPEALS FILED ON OR AFTER THAT DATE. INSTRUCTION NO. 02/2005 (COPY ON RECORD) CONTAINS NO CORRESPONDING PROVISION WITH REGARD TO APPEALS ARISING OUT OF A COMPOSITE APPELLATE ORDER, AS DOES THE SUBSEQUENT INSTRUCTION OF 2008, EVEN AS THE LIMIT OF TAX EFFECT PRESCRIBED THEREBY IS ALSO AT ` 2 LAKHS.. AS SUCH, THE REVENUES APPEAL FOR A.Y. 20 03-04 IS NOT MAINTAINABLE IN VIEW OF THE RELEVANT INSTRUCTIO N ISSUED BY THE BOARD U/S. 268A R/W S. 119 OF THE ACT, AND STANDS RIGHTLY DISMISSED AS SO BY THE TRIBUNAL VIDE THE IMPUGNED ORDER. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE REVENUES MISCELLANEOUS APPLICATION FOR AY 2003-04 (IN MP NO. 164/COCH/2009) IS DISMISSED, AND THAT FOR AY 2004-0 5 (IN M.P. NO. 165/COCH/2009), ALLOWED. SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 3RD FEBRUARY, 2012 GJ COPY TO: 1. M/S. NAMBIATTUKUDY AGRO INDUSTRIES, KOOVAPPADY, PERAMBAVOOR-683 544. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, ALUVA. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, KOC HI. 4. THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE . BY ORDER (ASSISTANT REGISTRAR) ITAT, COCHIN BENCH