ITO, Trivandrum V. Destination Designers, Trivandrum

MA 177/COCH/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7197 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 25-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 17-12-2009
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Keywords: Business income; Question of law; Tax effect

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. 177/COCH/2009 (I.T.A NO. 776/COCH/2008) ASSESSMENT YEAR: 2005-06 I.T.O., WARD-1(1), TRIVANDRUM. VS. DESTINATION DESIGNERS (P) LTD., GENERAL HOSPITAL ROAD, STATUE, TRIVANDRUM-695 001. [PAN: AACFD 6832B] (REVENUE-APPELLANT) (REVENUE-RESPONDENT) REVENUE BY MS. S. VIJAYAPRABHA, JR.DR ASSESSEE BY NONE DATE OF HEARING 25/11/2011 DATE OF PRONOUNCEMENT 25/11/2011 O R D E R PER SANJAY ARORA, AM: THIS MISCELLANEOUS PETITION (M.P.) BY THE REVENUE IS IN RESPECT OF THE ORDER BY THE TRIBUNAL IN THE ASSESSEES CASE FOR THE ASSESSM ENT YEAR (A.Y.) 2005-06 DATED 09-09- 2008 (IN I.T.A NO. 776/COCH/2008), PRAYING FOR A RE CALL OF THE TRIBUNALS ORDER FOR A DECISION ON MERITS. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION STANDS RECEIVED BY THE REGISTRY, EVEN AS THE HEARING WAS A DJOURNED TO 25-11-2011 ONLY ON THE REQUEST, AS IN THE PAST, BY THE LD. AR. ACCORDINGLY , THE MATTER WAS PROCEEDED WITH. THE TRIBUNAL HAD DISMISSED THE REVENUES APPEAL (FILED ON 25-06-2008) ON THE BASIS OF LOW TAX EFFECT, BEING AT LESS THAN ` 2 LAKHS, THE MANDATORY LIMIT SPECIFIED IN RESPECT O F PREFERRING APPEALS BY THE REVENUE BEFORE THE APPELLATE TRIBUNA L. IN DOING SO, THE TRIBUNAL RELIED ON M.P. NO. 177/COCH/2009 ITO, WARD 1(1), TRIVANDRUM V. DESTINATION DESIGNERS (P.) LTD. 2 THE CIRCULAR BY THE CBDT, AS WELL AS THE DECISIONS BY THE DIFFERENT HIGH COURTS IN THE MATTER, LISTED AT PARA 4 OF ITS ORDER. THE REVENUE S CONTENTION PER ITS PETITION IS THAT THE ORDER BY THE TRIBUNAL IS IN CONTRAVENTION OF THE DE CISIONS BY THE HONBLE JURISDICTIONAL HIGH COURT, REPORTED AT CIT V. G. SATHEESH NAIR , 264 ITR 377; URBAN STANISLAUS CO . V. CIT , 263 ITR 10; NANJI TOPANBHAI & CO. V. ASSTT. CIT , 243 ITR 192, HOLDING THAT INTEREST ON BANK FDR IS AN INCOME ASSESSABLE UNDER THE HEAD OF INCOME `INCOME FROM OTHER SOURCES AND NOT UNDER THE HEAD BUSINESS INCOME. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. IT IS CLEAR THAT WHILE THE BASIS OF THE TRIBUNALS DISMISSAL OF THE REVENUES APPEAL IS ITS NON- MAINTAINABILITY IN VIEW OF THE BOARDS CIRCULAR ISS UED U/S. 119 R/W S. 268A OF THE ACT, AS WELL AS THE VARIOUS DECISIONS RENDERED BY THE HONB LE HIGH COURTS ON THE SUBJECT, THE REVENUE CHALLENGES THE EFFECT OF ITS DECISION AS RE GARDS THE ADJUDICATION OF THE ASSESSMENT ON MERITS, WHICH HAS CLEARLY NOT BEEN DO NE (I.E., ADJUDICATED UPON) BY THE TRIBUNAL. AND, FURTHER, WHICH COULD ONLY BE THE SUB JECT MATTER OF CONSIDERATION WHILE HEARING AND DISPOSING THE REVENUES APPEAL ON MERIT S, I.E., WERE IT TO BE ADJUDICATED ON THAT BASIS WHEN HEARD ORIGINALLY OR EVEN NOW, I.E., ASSUMING A RECALL OF THE IMPUGNED ORDER ACCEPTING THE REVENUES INSTANT APPLICATION. THE CONTENTION RAISED IN THE REVENUES OBJECTION IS, THUS, CLEARLY MISPLACED. THE ONLY ISS UE BEFORE US WOULD BE WHETHER THE IMPUGNED ORDER PASSED IS IN ACCORD WITH THE LAW IN THE MATTER AS EXPLAINED - OR NOT, AS WHERE NOT SO, BEING (SAY) IN CONFLICT WITH THE SETT LED LAW, OR A DIRECT DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT/APEX COURT, OR ST ANDS RENDERED WITHOUT CONSIDERING THE SAME, WOULD ONLY IT BE LIABLE TO BE RECALLED. AS AF ORE-NOTED, THE BASIS OF THE TRIBUNALS DECISION IS THE BOARDS INSTRUCTION (NO. 05/2008 DA TED 15-05-2008). THE SAME IS MADE OBLIGATORY FOR CONSIDERATION BY THE APPELLATE AUTHO RITIES BY S. 268A OF THE ACT, CO-OPTED ON THE STATUTE BY FINANCE ACT, 2008 W.R.E.F. 01-04- 1999. THE TAX-EFFECT OF THE REVENUES APPEAL IS ADMITTEDLY BELOW ` 2 LAKHS. PARA 8 OF THE INSTRUCTION STATES THE CIRCU MSTANCES WHERE THE THRESHOLD MONETARY LIMIT PRESCRIBED BY IT FOR FILING APPEALS BY THE DEPARTMENT BEFORE THE APPELLATE AUTHORITIES (BEING AT ` 2 LAKHS BEFORE THE TRIBUNAL), WOULD NOT OBTAIN. THE REVENUE HAS NOT POINTED OUT ANY INFIRMITY IN TH E TRIBUNALS ORDER WITH REFERENCE TO M.P. NO. 177/COCH/2009 ITO, WARD 1(1), TRIVANDRUM V. DESTINATION DESIGNERS (P.) LTD. 3 THE SAID EXCEPTING CLAUSE. THE LD. DRS CONTENTION THAT THE ISSUE INVOLVES A SUBSTANTIAL QUESTION OF LAW, EXCEPTED UNDER THE BOARDS INSTRUC TION, IS INCORRECT AS THERE IS NO SUCH EXCEPTION UNDER PARA 8 OF THE SAID INSTRUCTION. IN TERMS THEREOF, IT IS, EVEN AS POINTED OUT DURING HEARING, ONLY WHERE THE CONSTITUTIONAL VALID ITY OF A PROVISION OF THE ACT OR RULE IS UNDER CHALLENGE, WOULD BE THE SAME QUALIFY FOR BEIN G AN EXCEPTING CIRCUMSTANCE. IN FACT, EVEN THE REVENUES PETITION DOES NOT RAISE ANY SUCH CONTENTION. IN THE CIRCUMSTANCES, WE FIND NO BASIS FOR RECALLING OF THE TRIBUNALS ORDER , AND DECIDE ACCORDINGLY. 4. IN THE RESULT, THE MISCELLANEOUS PETITION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/2011 (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: NOVEMBER 25, 2011 GJ COPY TO: 1. M/S. DESTINATION DESIGNERS (P) LTD., GENERAL HOS PITAL ROAD, STATUE, TRIVANDRUM - 695 001. 2. THE INCOME TAX OFFICER, WARD-1(1), TRIVANDRUM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, TRIV ANDRUM. 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE .