The ACIT, Kochi V. M/s.Trinity Arcade P.Ltd, Cochin

MA 169/COCH/2020

AI Insights

The case involves the Assistant Commissioner of Income-tax, Corporate Ward 2(1), Kochi (Applicant) vs. Trinity Arcade Private Limited (Respondent). Initially, the Tribunal dismissed the Revenue's appeal in limine under section 268A of the Income Tax Act, 1961, due to non-fulfillment of monetary limits prescribed for filing appeals. However, the Revenue filed a Miscellaneous Application citing exceptions under the Board Circular No.3/2018, specifically regarding assessments following the acceptance of Revenue audit objections. The Tribunal, upon reviewing the application and the cited exceptions, restored the appeal for a substantive hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115424 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 11 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-07-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 29-09-2019
• Other Referred Cases: Honda Siel Power Products Limited v. CIT[2007] 295 ITR 466 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Audit objection
• Section: 268A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri Sanjay Arora, AM &Shri Manomohan Das, JM MA No.169/Coch/2020: Asst.Year:2010-2011 (Arising out of ITA No.574/Coch/2019) The Assistant Commissioner of Income-tax, Corporate Ward 2(1), Kochi. vs. Trinity Arcade Private Limited 35/268A, Trinity House Mamangalam Ernakulam – 682 025. [PAN: AACCT2098L] (Applicant) (Respondent) Applicant by: Smt.J.M.Jamuna Devi, Sr.DR Respondent by: Sri.Santha Kumar K, CA Date of Hearing : 07.07.2023 Date of Pronouncement: 29.09.2023 O R D E R Per Sanjay Arora, AM: This is a Miscellaneous Application (MA) by the Revenue in respect of the in limine dismissal of it’s captioned Appeal by the Tribunal invoking section 268A of the Income Tax Act, 1961 (‘the Act’ hereinafter) vide it’s Order dated 03.03.2020. 2. Vide it’s instant application, submitted in time, the Revenue claims maintainability of it’s appeal u/s.268A inasmuch as the same is covered by exception listed at para 10(c) of the Board Circular No.3/2018, dated 11.07.2018, which exceptsassessments consequent to the acceptance to the Revenue audit objection. The Revenue has placed on record copy of the said objections, two in number, which we find to be in agreement with the issues arising for adjudication in the instant appeal. MA No.169/Coch/2020 (AY 2010-2011) A C I T v . T ri n i t y A rc a d e P v t . L t d . 2 3. The Tribunal, as indeed any other appellate authority specified therein, is bound by law (sec.268A) to have regard to the Orders, Circulars, Instructions, etc. issued by the Board from time to time fixing monetary limits, as it may deem fit, for the purpose of regulating the filing of appeal (or application for reference) by any Income-tax Authority under Chapter XX (Appeals and Revision) of the Act. The said Instructions also specify the terms and condition to which the mandate of threshold monetary limit is subject. Instruction No.3/2018 (supra), is one such. Paras 10 and 11 thereof specify such exceptions, with para 10(c) enlisting the acceptance of the Revenue’s audit objection by the Revenue as one of the exceptions, which in fact stands reproduced in it’s petition by the Revenue. The said Instruction was applicable at the relevant time, as indeed it is todate, with Instruction No.17/2019, dated 08.08.2019, enhancing the monetary limit specified therein, to Rs.50 lakh before the Tribunal. 4. The Tribunal, while passing the impugned order, was accordingly obliged to take note of the said exceptions, issuing a finding as to none of them being applicable, only which would entitle it to regard the Revenue’s appeal as not maintainable. Why, official acts are even otherwise presumed to be regularly performed. Conscious of the same, it, as a matter of expediency, dismissed the Revenue’s appeal u/s.268A, reserving the right for the Revenue to move it where it’s appeal fell under any of the exceptions. This is precisely what the Revenue has per it’s instant application done, i.e., exercised the right reserved by the Tribunal in it’s favour. The only pre-requisite, therefore, for the acceptance of the instant application is the satisfaction by the Tribunal that the appeal under reference does indeed fall under the stated exception, and which we have found to be the case. We, accordingly, despite vehement opposition to the same by Sri.Santha Kumar, the learned counsel for the assessee, accept the Revenue’s instant MA. The Tribunal is there only giving regard and effect to it’s own order dated 03.03.2020, which has since attained finality. No Court or Tribunal, it needs to be appreciated, can by it’s MA No.169/Coch/2020 (AY 2010-2011) A C I T v . T ri n i t y A rc a d e P v t . L t d . 3 action or non-action cause any prejudice to any side before it. This is signified by the legal maxim ‘Actus curiae neminem gravabit’, considered fundamental in Indian judiciary and jurisprudence. The Apex Court in Honda Siel Power Products Limited v. CIT[2007] 295 ITR 466 (SC), applying the same fundamental principle, accepted the assessee’s plea of rectification arising where the Tribunal had not dealt with/considered a decision by a Co-ordinate Bench relied upon before it. The decisions mentioned by the assessee in its argument note, which we have perused, are not at all applicable in the facts and circumstances of the case. 5. We, accordingly, restore the Revenue’s captioned appeal for being decided by the Tribunal on merits in accordance with law after allowing a reasonable opportunity of hearing to the parties. The Registry is directed to post the case for hearing in the regular course. We decide accordingly. 6. In the result, the Revenue’s instant MA is allowed. Order pronounced on September 29, 2023 under Rule 34 of The Income Tax (Appellate Tribunal) Rules, 1963. Sd/- (Manomohan Das) Sd/- (Sanjay Arora) Judicial Member Accountant Member Cochin; Dated: September 29, 2023 Devadas G* Copy to: 1. The Applicant. 2. The Respondent. 3. The Pr.CIT concerned 4. The Sr. DR, ITAT. 5. Guard File. Assistant Registrar ITAT, Cochin.