ITO, CHENNAI V. Sri E.J.Ponnambalam, CHENNAI

MA 248/CHNY/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7499 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 23-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: S SRIDHAR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AN D SHRI GEORGE MATHAN, JUDICIAL MEMBER ----- M.A. NO. 248/MDS/2011 (IN ITA NO. 126/MDS/2010) ASSESSMENT YEAR : 2006-07 THE INCOME-TAX OFFICER, BUSINESS WARD-IV(3), CHENNAI. V. SHRI E.J. PONNAMBALAM, NO. 25, GILL NAGAR EXTN. STREET, CHOOLAIMEDU, CHENNAI-600 094. [PAN : AHIPP1491K] (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ANIRUDH RAI, CIT-DR RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE DATE OF HEARING : 13-01-2012 DATE OF PRONOUNCEMENT : 13-01-2012 O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION IS FILED BY THE RE VENUE AGAINST THE ORDER OF THIS TRIBUNAL IN THE CASE OF THE ASSESSEE IN ITA NO .126/MDS/2010 DATED 05-07-- 2011 FOR THE ASSESSMENT YEAR 2006-07. M..A. NO. 248/MDS/2011 2 2. SHRI ANIRUDH RAI, LEARNED CIT-DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI S. SRIDHAR, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE. 3. THROUGH THIS MISCELLANEOUS PETITION, GRIEVANCE RAISED BY THE REVENUE IS THAT THE TRIBUNAL HELD THAT THE APPEAL TO BE NOT MAINTAI NABLE SINCE THE TAX EFFECT BEING LESS THAN ` 3 LAKHS. 4. WHEN THE MATTER CAME UP BEFORE US, LEARNED D.R. SUBMITTED THAT IN VIEW OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF C IT V. SURYA HERBAL LTD. IN T.C. NO.13694/2011 DATED 29.8.2011 AND THE DECISION OF H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. MR. M. SUSHIL KUMAR (IN D) & (HUF) IN TAX CASE (APPEAL) NOS. 805 & 806 OF 2005 DATED 29.6.2011, THE ORDER O F THE TRIBUNAL REQUIRED TO BE RECALLED. 4. PER CONTRA, THE LEARNED AUTHORISED REPRESENTATIV E OF THE ASSESSEE SUBMITTED THAT THE ISSUE WAS DEBATABLE ONE AND THERE WERE OTH ER DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT WHICH CLEARLY IMPLY THAT INSTRUCTION NO.3 OF 2011 WILL APPLY FOR PENDING APPEALS ALSO. 5. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL S UBMISSIONS CAREFULLY. INSOFAR AS THE ISSUE OF LOW TAX EFFECT IS CONCERNED , THIS TRIBUNAL HAS BEEN TAKING CONSISTENT VIEW THAT CIRCULAR NO.3 OF 2011 DATED 9. 2.2011 WOULD APPLY TO THE M..A. NO. 248/MDS/2011 3 APPEALS PENDING BEFORE THIS TRIBUNAL ALSO. REASON WHY THIS CIRCULAR COULD BE APPLIED FOR PENDING APPEALS HAS ALREADY BEEN GIVEN BY THIS TRIBUNAL IN ITS DECISION DATED 2 ND DECEMBER, 2011 IN M.P. NO.197/MDS/2011, WHEREIN RE LIANCE HAS BEEN PLACED ON THE DECISIONS OF HONBLE JURISDICTIONAL H IGH COURT IN THE CASE OF CIT V. S. SUMATHI (317 ITR 422), HONBLE PUNJAB & HARYANA HIG H COURT IN THE CASE OF CIT V. ABHINASH GUPTA (327 ITR 61) AND THAT OF HONBLE BOM BAY HIGH COURT IN THE CASE OF CIT V. MADHUKAR K. INAMDAR (318 ITR 141). 6. NOW, LEARNED D.R. BROUGHT TO OUR NOTICE THE DEC ISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M. SUSHIL KUMAR (SUPRA). IN THIS DECISION DATED 29.6.2011, IT HAS BEEN HELD BY HONBLE JURISDICTION AL HIGH COURT THAT THE TERMINOLOGY USED IN INSTRUCTION NO.1777 DATED 4.11. 1987 AND INSTRUCTION NO.1903 DATED 28 TH OCTOBER, 1992 AND THE LATER CIRCULAR OF THE BOARD DATED 27 TH MARCH, 2000 WOULD BE RELEVANT AS ON THE DATE OF FILING APPEAL O R IN OTHER WORDS, IT WOULD NOT APPLY TO MATTERS PENDING BEFORE THIS TRIBUNAL. 7. SINCE THE JURISDICTIONAL HIGH COURT HAS HELD THA T CIRCULAR ON TAX EFFECT WILL APPLY ONLY TO APPEALS FILED AFTER THE DATE OF SUCH CIRCULARS, JUDICIAL DISCIPLINE REQUIRES US TO BOW BEFORE SUCH HIGHER WISDOM, IN AC CORDANCE WITH THE JUDICIAL HIERARCHY. WE ARE THEREFORE CONVINCED THAT THE ORD ER OF THE TRIBUNAL SUFFERS FROM A MISTAKE APPARENT ON RECORD AND HAS TO BE RECALLED. IN THE RESULT, THE ORDER IN THE M..A. NO. 248/MDS/2011 4 APPEAL IS RECALLED AND REGISTRY IS DIRECTED TO FIX IT FOR HEARING, IN REGULAR COURSE, AFTER GIVING DUE NOTICES TO THE PARTIES. 8. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS ALLOWED. 9. THE ORDER WAS PRONOUNCED IN THE COURT ON 13/01/2 012. SD/- SD/- ( ABRAHAM P. GEORGE ) ( GEORGE MATHAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 13 TH JANUARY , 2012. H. COPY TO: (1) APPLICANT (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE