DCIT 9(1), V. KIRAN LILABHAI PATEL,

MA 296/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1707 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 12-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: B P PUROHIT

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI SANJAY GARG, JM . / MA NOS. 296 & 297/MUM/2013 (ARISING OUT OF ITA NOS. 8392 & 8391/MUM/2010) ( / ASSESSMENT YEARS: 2006-07 & 2007-08) DY. CIT-9(1), ROOM NO.223, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 / VS. KIRAN LALLUBHAI PATEL C/O. AMERICAN SPRING AND PRESSING WORKS LTD., B. P. PATEL ROAD, MALAD (W), MUMBAI-400 064 ' ./ # ./PAN/GIR NO. AACPP 8973 F APPLICANT : RESPONDENT APPLICANT BY : SHRI SURENDRA KUMAR RESPONDENT BY : SHRI B. P. PUROHIT $ % & ' ( / DATE OF HEARING : 24.01.2014 )*+ & ' ( / DATE OF PRONOUNCEMENT : 05.02.2014 , / O R D E R PER SANJAY ARORA, A. M.: THIS IS A SET OF TWO MISCELLANEOUS PETITIONS/APPLIC ATIONS BY THE REVENUE IN RESPECT OF A COMBINED ORDER U/S.254(1) OF THE INCOM E TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS (A.Y.) 2006-07 & 2007-08. 2. THE TRIBUNAL HAVING DISMISSED THE REVENUES APPE ALS IN LIMINE , I.E., AS NOT MAINTAINABLE IN VIEW OF THE PROVISION OF SECTION 26 8A OF THE ACT, HAS MOVED THE PRESENT APPLICATIONS, CLAIMING THAT INASMUCH AS THE TRIBUNA L STATES OF DOING SO BY FOLLOWING 2 MA NOS. 296 & 297/MUM/2013 (A.YS. 06-07 & 07-08) DY. CIT VS. KIRAN LALLUBHAI PATEL INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011 BY CBDT (COPY ON RECORD) PRESCRIBING A MONETARY LIMIT OF RS.3 LACS FOR APPEALS BY THE REVE NUE BEFORE THE APPELLATE TRIBUNAL, ITS ORDER IS INTERNALLY INCONSISTENT, AS THE SAID INSTR UCTION, VIDE PARA 11 THEREOF, CLEARLY STATES OF THE BEING APPLICABLE ONLY TO APPEALS FILED ON OR AFTER THE DATE OF ITS ISSUE, I.E., 09.02.2011. THE INSTANT APPEALS HAVING BEEN FILED O N 02.12.2010, I.E., PRIOR THERETO, THE SAID INSTRUCTION WOULD NOT BE APPLICABLE THERETO, W HICH WOULD INSTEAD BE GOVERNED BY THE EXTANT BOARD INSTRUCTION, I.E., THE INSTRUCTION NO. 5/2008 DATED 15.05.2008, PRESCRIBING A MONETARY LIMIT OF RS.2 LACS IN RESPECT OF THE SECON D APPEAL, I.E., BEFORE THE TRIBUNAL, AND WHICH WOULD THUS APPLY TO APPEALS PREFERRED DURING THE PERIOD 15.05.2008 TO 08.02.2011. THE TAX-EFFECT OF THE INSTANT APPEALS BEING ABOVE R S.2 LACS EACH, COULD NOT BE THEREFORE SAID TO BE NOT MAINTAINABLE, AND THE IMPUGNED ORDER REQUIRES RECONSIDERATION. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 THE REVENUE THROUGH ITS PRESENT MISCELLANEOUS A PPLICATIONS SEEKS TO BRING TO THE NOTICE OF THE TRIBUNAL A FACT OF WHICH IT IS WELL A WARE AND CONCIOUS OF, I.E., THAT INSTRUCTION NO.3 OF 2011 DATED 09.02.2011 MAKES ITSELF APPLICAB LE ONLY TO APPEALS BY THE REVENUE BEFORE THE RELEVANT APPELLATE FORUMS ON AND AFTER T HE DATE OF ITS ISSUE. WHEN THE TRIBUNAL HOLDS THE REVENUES APPEALS AS NOT MAINTAINABLE U/S .268A IN VIEW OF THE SAID INSTRUCTION, IT ONLY MEANS THE SAID INSTRUCTION AS READ AND INTE RPRETED BY THE HONBLE JURISDICTIONAL HIGH COURT, WHOSE DECISIONS, ALSO REFERRED TO THERE IN, ARE BINDING ON IT. ALL THIS WOULD BE APPARENT FROM A READING OF THE IMPUGNED ORDER (REFE R PARA 3 OF THE IMPUGNED ORDER). 3.2 FURTHER, EVEN THOUGH IT CANNOT BE PRESUMED THAT THE HONBLE COURT IS NOT AWARE OF THE SAID PARA 11 OF THE RELEVANT INSTRUCTION (NO.3 OF 2011), THE DECISION IN THE CASE OF CIT VS. SMT. VIJAYA VS. KAVEKAR [2012] 77 DTR (BOM) 203 ([2013] 350 ITR 237), REFER RED TO BY THE TRIBUNAL, TAKES NOTE THEREOF, AND GOES ON TO HOLD THAT THE SAID INSTRUCTION IS IN PARI MATERIA WITH INSTRUCTION NO.5/2008 DATED 15.05.2008 (REFER PARAS 11-15 THEREOF), AND RETROSPECTIVE IN OPERATION. FURTHER, IN CIT VS. SMT. VARSHA DILIP KOLHE (IN TAX APPEAL NO. 7 OF 2010 DATED 05.03.2012), AGAIN REFERRED TO BY THE TRIBUNAL, THE HONBLE COURT CONFIRMS ITS VIEW AFTER TAKING NOTE OF THE OBSERVAT ION BY THE APEX COURT IN THE CASE OF CIT 3 MA NOS. 296 & 297/MUM/2013 (A.YS. 06-07 & 07-08) DY. CIT VS. KIRAN LALLUBHAI PATEL VS. SURYA HERBAL LTD. DATED 29.08.2011. NO CASCADING EFFECT HAS EVEN OTH ERWISE BEEN POINTED OUT OR ALLEGED BY THE REVENUE IN THE INSTAN T CASES. REFERENCE MAY ALSO BE MADE TO THE DECISION IN CIT VS. POLYCOTT CORPORATION [2009] 318 ITR 144 (BOM) EXPLAINING THAT THE BOARD INSTRUCTIONS COULD NOT BE INTERPRETE D AS A STATUTE. THAT IS, THE CONSISTENT VIEW OF THE HONBLE JURISDICTIONAL HIGH COURT IS TH AT THE INSTRUCTIONS BY THE BOARD ISSUED IN THE MATTER WOULD APPLY TO PENDING APPEALS AS WELL. 3.3 IN VIEW OF THE FOREGOING, WE FIND NO INFIRMITY IN THE IMPUGNED ORDER ON EACH OF THE ASPECTS OR GROUNDS SOUGHT TO BE IMPRESSED UPON PER THE INSTANT APPLICATIONS. WE, THEREFORE, DECLINE INTERFERENCE. WE DECIDE ACCORDIN GLY. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 05, 2014 SD/- SD/- (SANJAY GARG) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER $ -% MUMBAI; . DATED : 05.02.2014 .../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / '0 / THE APPELLANT 2. 12'0 / THE RESPONDENT 3. $ 3' ( / ) / THE CIT(A) 4. $ 3' / CIT CONCERNED 5. 6 1'7 , / ( 7+ , $ -% / DR, ITAT, MUMBAI 6. 8 9 % / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , $ -% / ITAT, MUMBAI