ITO, Cochin V. JNV Associates, Cochin

MA 182/COCH/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7195 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 11 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-12-2011
• Assessment Year: 1992-1993
• Appeal Filed On: 17-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Assessee Lawyers: S NARAYANAN
• Keywords: Question of law; Tax effect; Revenue expenditure; Capital expenditure

Judgement Text

1 M.A. NO 182/COCH/2009 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) & SHRI SANJAY ARORA (AM) M.A. NO 182/COCH/2009 (ARISING OUT OF ITA NO.1315/COCH/2004 (ASSESSMENT YEAR 1992-93) ITO, WD.2(1) VS M/S TNV ASSOCIATES RANGE-2, KOCHI CHITTOOR ROAD, COCHIN-18 PAN : NOT AVAILABLE (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.R. SENAPATI RESPONDENT BY : SHRI S NARAYANAN DATE OF HEARING : 30-12-2011 DATE OF PRONOUNCEMENT: 30-12-2011 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNA L DATED 18 TH MARCH, 2009. 2. SHRI S.R. SENAPATI, THE LD.DR SUBMITTED THAT THE TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE ON THE GROUND THAT THE TAX EF FECT IS LESS THAN RS.2 LAKHS. ACCORDING TO THE LD DR, THE ISSUE ARISES FOR CONSID ERATION IS WITH REGARD TO PAYMENT OF RS.1,29,257 TO CHOCHIN STOCK EXCHANGE BUILDING . THE COMMISSIONER OF INCOME- TAX(A) TREATED THE SAME AS REVENUE EXPENDITURE. AC CORDING TO THE LD.DR WHEREAS THE PAYMENT WAS ONE TIME THEREFORE, IT IS TO BE TRE ATED AS CAPITAL EXPENDITURE. ACCORDING TO THE LD.REPRESENTATIVE, THE ISSUE INVOL VED IS SUBSTANTIAL QUESTION OF LAW 2 M.A. NO 182/COCH/2009 AND THEREFORE, IN VIEW OF THE JUDGMENT OF THE JURIS DICTIONAL HIGH IN ITA NO.18 OF 2008 DATED 17-07-2008, THE TRIBUNAL OUGHT TO HAVE ADJ UDICATED THE APPEAL ON MERIT. 3. SHRI S NARAYANAN, THE PARTNER OF THE ASSESSEE FI RM WAS PRESENT DURING THE COURSE OF HEARING. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR. THE ONLY CONTENTION OF THE LD.DR IS THAT THERE IS A SUBSTANTIAL QUESTION O F LAW INVOLVED IN THIS APPEAL. THEREFORE, THE TRIBUNAL OUGHT TO HAVE DISPOSED OF T HE APPEAL ON MERIT. IT IS NOT IN DISPUTE THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS.2 LAKHS. WE HAVE CAREFULLY GONE THROUGH THE UNREPORTED JUDGMENT OF T HE JURISDICTIONAL HIGH COURT IN COMMISSIONER OF INCOME-TAX VS SREEKANTAN PILLAI IN IT A NO.18 OF 2008 COPY OF WHICH IS FILED BY THE LD.DR. IN THE CASE BEFORE TH E HIGH COURT, THE REVENUE, IN THE MEMORANDUM OF APPEAL HAS ASSERTED THAT IN VIEW OF T HE BOARD CIRCULAR DATED 24- 10-2005 EVEN THOUGH THE MONETARY LIMIT DOES NOT EXCE ED MORE THAN RS.2 LAKHS, SINCE IT INVOLVED SUBSTANTIAL QUESTION OF LAW OF IM PORTANCE, IT HAS TO BE CONSIDERED ON MERIT. IN THE CASE BEFORE US, IT IS ONLY A CLAS SIFICATION OF INCOME EITHER AS REVENUE EXPENDITURE OR CAPITAL IN NATURE. FIRST OF ALL, THIS IS NOT A SUBSTANTIAL QUESTION OF LAW. CLASSIFICATION OF INCOME UNDER ANY ONE OF THE HEAD IS A FACTUAL ASPECT. MOREOVER, NO GROUNDS OF APPEAL WAS RAISED BY THE REVENUE BEFORE THE TRIBUNAL THAT EVEN THOUGH THE TAX EFFECT WAS LESS T HAN RS.2 LAKHS, A SUBSTANTIAL QUESTION OF LAW WAS INVOLVED IN THE SUBJECT MATTER OF APPEAL BEFORE THIS TRIBUNAL. IT IS ALSO NOT THE CASE OF THE REVENUE THAT IT WAS BROUGHT TO THE NOTICE OF THE BENCH THAT THERE WAS A SUBSTANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION OF THE TRIBUNAL. IN THE ABSENCE OF ANY GROUNDS OF APPEAL AND FAILURE OF THE DEPARTMENT TO 3 M.A. NO 182/COCH/2009 BRING TO THE NOTICE OF THE BENCH THAT THERE WAS A S UBSTANTIAL QUESTION OF LAW, IN OUR OPINION, THIS ISSUE CANNOT BE RAISED FOR THE FIRST TIME IN THE MISCELLANEOUS APPLICATION. MISCELLANEOUS APPLICATION CAN BE FILE D ONLY TO RECTIFY A MISTAKE WHICH IS PRIMA FACIE ON RECORD. THE REVENUE CANNOT RAISE NEW GROUNDS OF APPEAL IN THE MISCELLANEOUS APPLICATION. FURTHERMORE, AS WE HAVE ALREADY OBSERVED, THE CLASSIFICATION OF INCOME IN ANYONE OF THE HEADS IS ONLY A QUESTION OF FACT . THEREFORE, NO QUESTION OF LAW IS INVOLVED. CONSEQU ENTLY WE DO NOT FIND ANY ERROR, MUCH LESS, PRIMA FACIE ERROR, IN THE ORDER OF THIS TRIBUNAL DATED 18-03-2009. ACCORDINGLY, THE MISCELLANEOUS APPLICATION OF THE R EVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF DECEMBER, 2011. SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 30 TH DECEMBER, 2011 PK/- COPY TO: 1. ITO, WD.2(1), RANGE-2, KOCHI 2. M/S TNV ASSOCIATES, CHITTOOR ROAD, COCHIN-18 3. THE COMMISSIONER OF INCOME-TAX(A)-II, CALICUT 4. THE COMMISSIONER OF INCOME-TAX, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH 4 M.A. NO 182/COCH/2009 DATE OF DICTATION : 30-12-2011 DATE OF PLACING THE DRAFT ORDER BEFORE THE MEMBER : 30-12-2011 DATE OF PLACING THE PROPOSED ORDER BEFORE THE OTHER MEMBER : DATE OF RETURN OF THE ORDER TO PS AFTER APPROVAL : DATE OF PRONOUNCEMENT : DATE ON WHICH THE FILE ALONG WITH THE ORDER SENT TO BC :