Deputy Commissioner of Income Tax, Circle-1(1) , Jabalpur V. Shri Vishwnath Dubey, Prop. M/s. Phoenix Paultry, , Jabalpur

MA 17/JAB/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7096 (ITAT-JABALPUR)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 27-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: I B KHANDEL
• Keywords: Tax effect
• Section: 268A

Judgement Text

MA NO.17/JAB/2019 1 DY. CIRCLE I(1), JBPR V. VISH WANATH DUBEY (AY 2007-08) IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE S/SHRI NRS GANESAN, JUDICIAL MEMBER & SANJAY ARORA, ACCOUNTANT MEMBER MA NO.17/JAB/2019 (ARISING OUT OF I.T.A. NO. 44/JAB/2017) ASSESSMENT YEAR: 2007-08 DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1(1), JABALPUR VS. SHRI VISHWANATH DUBEY, PROP. M/S. PHOENIX POULTRY, 201/15, RATAN COLONY, P.B.75, GORAKHPUR, JABALPUR (MP) (PAN: ADDPD 8525D) (APPELLANT ) (RESPONDENT) APPELLANT BY SHRI I.B.KHANDEL, DR RESPONDENT BY SHRI DHIRAJ GHAI, CA DATE OF HEARING 31/07/2020 DATE OF PRONOUNCEMENT 07/09/2020 ORDER PER SANJAY ARORA, AM: THIS IS A MISCELLANEOUS PETITION BY THE REVENUE AG AINST THE IN LIMINE DISMISSAL OF ITS CAPTIONED APPEAL FOR ASSESSMENT Y EAR (AY) 2007-08 U/S. 268A OF THE INCOME TAX ACT (THE ACT HEREINAFTER). 2. WE HAVE GONE THROUGH THE WRITTEN SUBMISSIONS DAT ED 30.07.2020 BY THE LD. DEPARTMENT REPRESENTATIVE (DR), VEHEMENTLY RELI ED UPON DURING HEARING. NO CONTENTION THEREIN THAT THE APPEAL UNDER REFEREN CE IS COVERED BY THE EXCEPTION LISTED AT PARA 10, OR OTHERWISE PARA 11 O F THE BOARD CIRCULAR 3/2018, MA NO.17/JAB/2019 2 DY. CIRCLE I(1), JBPR V. VISH WANATH DUBEY (AY 2007-08) DATED 11.07.2018. RATHER, THE ACCOMPANYING LETTER D ATED 28.7.2020 BY THE DY. CIT, CIRCLE-I(1), JABALPUR, I.E., THE AO, TO THE LD . DR, ENCLOSED ALONG WITH HIS WRITTEN SUBMISSIONS, CLEARLY STATE THAT THE INSTANT MA WAS FILED BY THE DEPARTMENT ON THE BASIS THAT THE TAX EFFECT IS RS.5 0,52,548/-, I.E., ABOVE RS.50,00,000/-, WHICH IS IN FACT NOT SO. THE LD. DR WOULD, UPON BEING SPECIFICALLY ASKED BY THE BENCH DURING HEARING, CON FIRMED THE TAX EFFECT OF THE INSTANT APPEAL TO BE BELOW RS.50 LACS, AS WELL AS T HAT THE REVENUES CASE IS NOT EXCEPTED UNDER PARA 10 OF THE BOARD CIRCULAR (SUPRA ). 3.1 THE WRITTEN SUBMISSIONS BY THE LD. DR, WHICH WE RE INSISTED BE READ BY THE TRIBUNAL BEFORE DECIDING THE REVENUES MA, HAVE BEEN GONE THROUGH. THE SAME STATE OF SOME DIRECTION BY THE HONBLE JURISDI CTIONAL HIGH COURT IN THE ASSESSEES CASE FOR AN EARLIER YEAR, CLAIMED TO BE RELEVANT FOR THE CURRENT AS WELL. TRUE, HOWEVER, AS ALSO CLARIFIED DURING HEARING, WE ARE NOT HERE CONCERNED WITH THE MERITS OF THE CASE, BUT ONLY IF THE SAME IS COV ERED U/S. 268A, OR, RATHER, IF THE DISMISSAL OF THE REVENUES APPEAL THERE-UNDER IS NO T JUSTIFIED. 3.2 THE SECOND ISSUE RAISED PER THE WRITTEN SUBMISS IONS BY THE LD. DR IS OF THE APPEAL RAISING A LEGAL ISSUE. TRUE, WHERE AN AP PEAL RAISES A LEGAL ISSUE ONLY, ITS TAX EFFECT MAY BE INDETERMINATE WHERE THERE IS NO ORDER BY THE FIRST APPELLATE AUTHORITY ON THE MERITS OF THE CORRESPONDING ADJUST MENT (TO THE RETURNED INCOME) ON QUANTUM. THE REVENUES APPEAL WOULD UNDER SUCH C IRCUMSTANCES STAND TO BE EXCLUDED UNDER PARA 11 OF THE BOARD CIRCULAR SUPRA. IN THE INSTANT CASE, HOWEVER, THE LEGAL ISSUE IS QUA THE SAME ISSUE WHICH HAS BEEN DECIDED BY THE FIRST APPELLATE AUTHORITY ON QUANTUM IN FAVOUR OF THE ASS ESSEE. AS SUCH, EVEN IF THE LEGAL ISSUE GETS DECIDED IN REVENUES FAVOUR, IT WO ULD BE OF NO MOMENT INASMUCH AS THE QUANTUM ASPECT OF THE SAME ADJUSTME NT HAS ATTAINED FINALITY PER THE IMPUGNED ORDER IN VIEW OF SECTION 268A. THE ARG UMENT THEREFORE FAILS ON FACTS. MA NO.17/JAB/2019 3 DY. CIRCLE I(1), JBPR V. VISH WANATH DUBEY (AY 2007-08) 4. THE REVENUES CASE, AS WOULD BE APPARENT FROM TH E FOREGOING, IS CLEARLY WITHOUT MERIT, AND IS ACCORDINGLY DISMISSED. WE DEC IDE ACCORDINGLY. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 07, 2020 SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07/09/2020 (*) AKS