ACIT, CHENNAI V. K.Senthilvelan, CHENNAI

MA 244/CHNY/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7468 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-01-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 19-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOBADDL
• Assessee Lawyers: S SRIDHAR
• Keywords: Tax effect

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI B BENCH, CHENNAI. BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER & SHRI N.S. SAINI, ACCOUNTANT MEMBER M.P. NO. 244/MDS/2011 [IN I.T.A. NO. 1177/MDS/2010] ASSESSMENT YEAR: 2007-08 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE IX, CHENNAI. VS. K. SENTHILVELAN, 210, GOVINDAPPA NAICKEN STREET, CHENNAI 1. [PAN: AFJPS1753E] (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SHAJI P. JACOB,ADDL. CIT ASSESSEE BY : SHRI S. SRIDHAR, ADVOCATE DATE OF HEARING : 20 . 0 1.201 2 DATE OF PRONOUNCEMENT : 31.01.2012 ORDER PER N.S. SAINI, ACCOUNTANT MEMBER THIS MISCELLANEOUS PETITION HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 12.05.2011 IN I.T.A. NO . 1177/MDS/2010 IN ASSESSMENT YEAR 2007-08. SHRI SHAJI P. JACOB, ADDL. CIT REPRESENTED ON BEHALF OF THE REVENUE AND SHRI S. SRIDHAR, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 2. IN THE MISCELLANEOUS PETITION, THE GRIEVANCE OF THE REVENUE IS THAT INSTRUCTION NO.3/2011 DATED 09.02.2011 PROVIDING FO R THE REVISED MONETARY LIMIT IS APPLICABLE ONLY FOR THE APPEALS FILED ON O R AFTER 09.02.2011 I.E. THE M.P. NO. 244 M.P. NO. 244 M.P. NO. 244 M.P. NO. 244/M/11 /M/11 /M/11 /M/11 2 DATE OF INSTRUCTION. IN PARA 11 OF THE SAID INSTRUC TION, WHICH HAS BEEN CLARIFIED THAT APPEALS FILED EARLIER WOULD BE GOVERNED BY OLD INSTRUCTIONS OPERATIVE AT THE TIME OF FILING OF THE APPEAL. HENCE, THE MONETA RY LIMIT OF ` .2.00 LAKHS IS APPLICABLE IN THE PRESENT CASE. AS THE TAX EFFECT I N THE APPEAL FILED BY THE REVENUE IS MORE THAN ` .2.00 LAKHS, THEREFORE, THE ORDER OF THE TRIBUNAL SHOULD BE RECALLED AND THE APPEAL SHOULD BE HEARD O N MERITS. 3. THE LD. DR HAS FILED A COPY OF THE ORDER OF THE HONBLE MADRAS HIGH COURT DATED 29.06.2011 IN TAX CASE (APPEAL) NOS. 80 5 AND 806 OF 2005 IN THE CASE OF CIT VS. MR. M. SUSHIL KUMAR (IND) & HUF ) AND SUBMITTED THAT THE HONBLE MADRAS HIGH COURT IN THIS ORDER AT PAGE 2 P ARA 3 HAS HELD THAT GOING BY THE TERMINOLOGY USED IN THE CIRCULAR USED SPECIF YING THE MONETARY LIMIT FOR FILING THE DEPARTMENTAL APPEALS, WE HAVE NO HESITAT ION TO HOLD THAT THE TRIBUNAL SHOULD CONSIDER THE RELEVANCY OF THE CIRCU LAR, WHICH EXIST AS ON THE DATE OF FILING THE APPEAL. THE HONBLE HIGH COURT, THEREFORE, SET ASIDE THE ORDER OF THE TRIBUNAL DIRECTING THE TRIBUNAL TO HEA R THE APPEAL ON MERITS AND PASS ORDER THEREON. 4. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT AS T HE ORDER OF THE HONBLE MADRAS HIGH COURT FILED NOW BY THE LD. DR, WHICH WA S NOT FILED AT THE TIME OF HEARING OF THE APPEAL AND THEREFORE THE SAME COULD NOT BE CONSIDERED BY THE TRIBUNAL AND THERE WAS NO ERROR IN THE ORDER OF THE TRIBUNAL, WHICH CAN BE RECTIFIED BY PASSING ORDER UNDER SECTION 254(2) OF THE ACT. 5. WE DO NOT FIND ANY FORCE IN THE ARGUMENT OF THE LD. AR OF THE ASSESSEE M.P. NO. 244 M.P. NO. 244 M.P. NO. 244 M.P. NO. 244/M/11 /M/11 /M/11 /M/11 3 THAT THE JURISDICTIONAL HIGH COURT ORDER WAS NOT FI LED AT THE TIME OF ORIGINAL HEARING OF THE APPEAL AND THEREFORE FOLLOWING THE S AME THE TRIBUNAL CANNOT RECALL ITS ORDER. OUR VIEW IS SUPPORTED BY THE DECI SION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KU TCH STOCK EXCHANGE LTD. [2008] 305 ITR 227(SC), WHEREIN, IT WAS HELD T HAT WHERE AFTER THE TRIBUNAL RENDERED ITS DECISION ON APPEAL, A MISCELL ANEOUS APPLICATION WAS FILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE A CT, STATING THAT A DECISION OF THE JURISDICTIONAL HIGH COURT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL THE HONBLE SUPREME COURT HAS HELD THAT THERE WAS A MISTAKE APPARENT FROM THE RECORD WHICH REQUIRED RECTIFICATION. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE ORDER OF THE TRIBUNAL. WE FIND THAT THIS APPEAL WAS FILED BY THE REVENUE ON 16.07.2010. THE TAX EFFECT IN THE APPEAL WAS MORE T HAN ` .2.00 LAKHS AS THE REVENUE HAS COME IN APPEAL BEFORE THE TRIBUNAL AGAI NST THE DELETION OF LOAN CREDITORS OF ` .5.00 LAKHS AND AGRICULTURAL INCOME OF ` . 1.00 LAKH. WE ALSO FIND THAT AS PER INSTRUCTION NO.3 OF 2008 DATED 15.05.2008 PROVIDES THAT WHERE TAX EFFECT IN THE APPEAL OF THE REVENUE WAS LESS THAN ` .2.00 LAKHS THEN THE REVENUE SHOULD NOT FILE APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE LD. CIT(A). THUS, WHEN THE APPEAL WAS FILED BY THE DEPARTMENT ON 16.0 7.2010, THE LIMIT FOR NOT FILING THE APPEAL BEFORE THE TRIBUNAL, AS PER THE CBDT INS TRUCTION WAS ` .2.00 LAKHS. THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. MR . M. SUSHIL KUMAR (IND) & (HUF) (SUPRA) HAS HELD THAT THE TRIBUNAL SHOULD CON SIDER THE RELEVANCY OF THE M.P. NO. 244 M.P. NO. 244 M.P. NO. 244 M.P. NO. 244/M/11 /M/11 /M/11 /M/11 4 CIRCULAR, WHICH EXIST AS ON THE DATE OF FILING THE APPEAL. THEREFORE, THE TRIBUNAL SHOULD HAVE CONSIDERED THE LIMIT OF ` .2.00 LAKHS FOR NOT FILING THE APPEAL BY THE DEPARTMENT. THEREFORE, BY DISMISSING THE APPEAL OF THE REVENUE FOLLOWING THE INSTRUCTION NO. 3/2011 DATED 09.02.2011, WHERE THE LIMIT FOR NOT FILING THE APPEAL BY THE REVENUE WAS ` . 3.00 LAKHS, THERE IS A MISTAKE CREPT IN THE ORDER OF THE TRIBUNAL. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE HONBLE MAD RAS HIGH COURT RECALL OUR ORDER DATED 12.05.2011 AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR HEARING IN REGULAR COURSE. 7. IN THE RESULT, THE MISCELLANEOUS PETITION OF TH E REVENUE IS ALLOWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 31.01.2012. SD/ - SD / - (HARI OM MARATHA) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER CHENNAI, DATED, THE 31.01.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.