ITO, Kumbakonam V. Shri K. Vivekanandan, Kumbakonam

MA 220/CHNY/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5366 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 10-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 22-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: A S SRIRAMAN
• Keywords: Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , ! ' #! ' $ . % , & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER )!)! / M.P. NO.220/MDS/2016 (IN ITA NO.1256/MDS/2012) & * !+* / ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER, WARD 1, KUMBAKONAM. V. SHRI K. VIVEKANANDAN, NO.34, SARVAMANYA STREET, MELA CAUVERY, KUMBAKONAM. PAN : AEHPV 9685 H (-.* /PETITIONER) (-/.0/ RESPONDENT) -.* 2 3 /PETITIONER BY : SHRI A.V. SREEKANTH, JCIT -/.0 2 3 / RESPONDENT BY : SH. A.S. SRIRAMAN, ADVOCATE ' ! 2 4 / DATE OF HEARING : 10.03.2017 56+ 2 4 / DATE OF PRONOUNCEMENT : 15.03.2017 / O R D E R PER DUVVURU R.L. REDDY, JUDICIAL MEMBER: BY THIS MISCELLANEOUS PETITION, THE REVENUE SEEK S RECALL OF ORDER OF THIS TRIBUNAL IN I.T.A. NO.1256/MDS/2012 D ATED 29.02.2016. 2. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED TH AT THE TAX EFFECT INVOLVED IN THIS APPEAL IS AS FOLLOWS:- 2 M.P. NO.220/MDS/16 INCOME - TAX : ` 9,24,000/ - SUR CHARGE : ` 92,400/ - EDUCATION CESS : ` 30,492/ - ` 10,46,892/ - ACCORDING TO HIM, THE TAX EFFECT INVOLVED IN THIS A PPEAL EXCEEDS ` 10 LAKHS AND CIRCULAR NO.21/2015 DATED 10.12.2015 RELI ED ON BY THE TRIBUNAL CANNOT BE APPLIED. THE LD. D.R. RELIED ON THE JUDGMENT OF SUPREME COURT IN THE CASE OF CIT V. K. SRINIVASAN ( 1972) 83 ITR 346, WHEREIN IT WAS HELD THAT INCOME-TAX INCLUDES S URCHARGE AND ADDITIONAL SURCHARGE. 3. ON THE CONTRARY, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT CIRCULAR NO.21/2015 OF CBDT STATES THAT WHEN T HE TAX INVOLVED IS LESS THAN ` 10 LAKHS, THEN THE APPEAL FILED BY THE REVENUE IS N OT MAINTAINABLE BEFORE THE TRIBUNAL. ACCORDING TO HIM , IN THE PRESENT CASE, THE APPEAL WAS FILED ON 06.06.2012 AND THE CI RCULAR THOUGH ISSUED ON 10.12.2015, THIS CIRCULAR IS ALSO APPLICA BLE TO THE PENDING APPEALS BEFORE THIS TRIBUNAL. THEREFORE, THIS TRIB UNAL RELIED ON THE SAID CIRCULAR, WHICH IS JUSTIFIED AS THE TAX EFFECT INVOLVED IS LESS THAN ` 10 LAKHS. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE ARGUMENT OF THE LD. DEPAR TMENTAL 3 M.P. NO.220/MDS/16 REPRESENTATIVE IS MISCONSTRUED. THE DEFINITION OF TAX UNDER SECTION 2(43) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') IS AS FOLLOWS:- 2(43) 'TAX' IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1965, AND ANY SUBSEQUENT ASSESSMENT YEAR MEANS INCOME-TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT, AND IN RELATION TO ANY OTHER ASSESSMENT YEAR INCOME-TAX AND SUPER-TAX CHARGEABLE UNDER THE PROVISIONS OF THIS AC T PRIOR TO THE AFORESAID DATE 73AND IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE FIRST DAY OF APRI L, 2006, AND ANY SUBSEQUENT ASSESSMENT YEAR INCLUDES THE FRINGE BENEFIT TAX PAYABLE UNDER SECTION 115WA 5. WHILE THE SURCHARGE AND EDUCATION CESS CANNOT BE PART OF TAX COMPONENTS, ONLY TAX HAS TO BE CONSIDERED. IN THIS CASE, ON THE DISPUTED ISSUE, THE TAX INVOLVED IS LESS THAN ` 10 LAKHS. BEING SO, THE SAID CIRCULAR OF THE CBDT IS APPLICABLE FOR THE APPEAL FILED BEFORE THIS TRIBUNAL. WHEN THE JUDGMENT RELIED ON BY THE LD. D.R. WAS DELIVERED BY THE SUPREME COURT ON 5 TH NOVEMBER, 1971 RELATING TO ASSESSMENT YEAR 1964-65, SECTION 2(43) OF THE ACT W AS INSERTED WITH EFFECT FROM 01.04.1965. AS SUCH, THAT JUDGMEN T DELIVERED BY THE SUPREME COURT FOR ASSESSMENT YEAR 1964-65 CANNO T BE APPLIED TO THE PRESENT CASE. IN THIS VIEW OF THE MATTER, W E DO NOT FIND ANY INFIRMITY IN THE ORDER OF THIS TRIBUNAL SO AS TO RE CALL THE SAME. 4 M.P. NO.220/MDS/16 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 15 TH MARCH, 2017 AT CHENNAI. SD/- SD/- ( ) ( ' #! ' $ . % ) (CHANDRA POOJARI) (DUVVURU R.L. REDDY) /ACCOUNTANT MEMBER & /JUDICIAL MEMBER /CHENNAI, J /DATED, THE 15 TH MARCH, 2017. KRI. K 2 -&4L) M)+4 /COPY TO: 1. -.* /PETITIONER 2. -/.0 /RESPONDENT 3. ' N4 () /CIT(A) 4. ' N4 /CIT 5. )!OP -&4& /DR 6. P* Q /GF.