ACIT, CHENNAI V. M/s. Kumaran Hospitals Pvt.Ltd., CHENNAI

MA 36/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7997 (ITAT-CHENNAI)
• Duration Of Justice: 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 02-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR YOG ESH KAMAT IRS
• Assessee Lawyers: G BASKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.A.NO.36/MDS/2012 (IN ITA NO.1927/(MDS)/2010) ASSESSMENT YEAR: 2003-04 THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-II(4), CHENNAI. VS. M/S. KUMARAN HOSPITALS PVT. LTD., 214, EVR PERIYAR SALAI, KILPAUK, CHENNAI 600 010. PAN AAACK 4398L (APPELLANT) (RESPONDENT) APPLICANT BY : DR. YOG ESH KAMAT, IRS, CIT RESPONDENT BY : SHRI G. BAS KAR, ADVOCATE DATE OF HEARING : 27 TH APRIL, 2012 DATE OF PRONOUNCEMENT : 18 TH MAY, 2012 O R D E R PER DR. O.K.NARAYANAN, VICE PRESIDENT THIS MISCELLANEOUS PETITION FILED BY THE REVENUE IS IN THE NATURE OF RECTIFICATION PETITION. THIS PETITION IS FILED IN THE CONTEXT - - MA 36/12 2 OF THE ORDER PASSED BY THE TRIBUNAL ON 22.06.2011 I N I.T.A.NO.1927/MDS/2010. 2. THE TEXT OF THE PETITION FILED BY THE REVENUE IS EXTRACTED BELOW FOR CLARITY OF THE ISSUE: THE HONOURABLE ITAT IN THE ABOVE ORDERS HAS DISMISSED THE DEPARTMENTAL APPEAL ON THE GROUND THA T THE MONETARY LIMIT FOR FILING APPEAL BEFORE THE ITA T HAS BEEN HAS BEEN ENHANCED TO ` 3 LAKHS VIDE INSTRUCTION NO.3 OF 2011 DT. 09.02.2011. AS PER BOARDS INSTRUCTION NO.3/2011 THE REVISED MONETARY LIMIT WAS APPLICABLE ONLY FOR THE APPEALS FILED ON OR AFTER 09.02.2011 IE. THE DATE OF INSTRUCTION. PARA 11 OF THE INSTRUCTION CLARIFIES THAT THE APPEALS FI LED EARLIER WOULD BE GOVERNED BY THE OLD INSTRUCTIONS OPERATIVE AT THE TIME OF FILING. ON SIMILAR ISSUE, SUPREME COURT IN THE CASE OF SUYRA HERBAL ON A SLP FILED BY THE DEPARTMENT HAS OBSERVED THAT THE INSTRUCTION NO.3/2011 WILL NOT APPLY IPSO FACTO IN RESPECT OF APPEALS FILED PRIOR TO 09.02.2011 AND DIRECTED T HAT A REVIEW PETITION BE FILED BEFORE THE HIGH COURT. - - MA 36/12 3 FOR THE ABOVE REASONS AND SUCH OTHER REASONS AS MAY BE ADDUCED AT THE TIME OF HEARING IT IS PRAYED THAT THE HONOURABLE ITAT MAY RECTIFY THEIR ORDERS ON THE ABOVE APPEAL AND RENDER JUSTICE. 3. WE HEARD DR. YOGESH KAMAT, THE LEANED COMMISSION ER OF INCOME-TAX APPEARING FOR THE REVENUE AND SHRI G. BASKAR, THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE. 4. THE TRIBUNAL HAS DISMISSED THE APPEAL FILED BY T HE REVENUE, AS NOT MAINTAINABLE IN VIEW OF INSTRUCTION NO.3 OF 2011 DATED 9.2.2011, WHERE THE LIMIT PRESCRIBED BY THE B OARD IS ` 3 LAKHS AND WHEREAS THE DISPUTED AMOUNT IN THE APPEAL FILED BY THE REVENUE IS LESS THAN ` 3 LAKHS. 5. THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V. MR. M. SUSHIL KUMAR (IND) & (HUF) IN TAX CASE (APPEAL) NOS. 805 & 806 OF 2005 HAS CONSIDERED THE ISSUE IN THE JUDGMEN T OF THEIR LORDSHIPS, DATED 29.6.2011. IN THE SAID CASE, THE HONBLE COURT HAS HELD THAT THE APPLICABILITY OF THE CIRCULAR REG ARDING FILING OF APPEALS SHOULD BE ACCOUNTED WITH THE DATE OF FILING OF APPEAL BY THE REVENUE. THE COURT HELD THAT THE LATEST NOTIFI CATION ISSUED BY THE BOARD WILL NOT APPLY TO THE PENDING APPEALS ALSO, IF THOSE - - MA 36/12 4 APPEALS ARE FILED BEFORE THE ISSUE OF THAT LATEST N OTIFICATION. IN VIEW OF THE ABOVE JUDGMENT OF THE HONBLE HIGH COUR T, WE FIND THAT THE TRIBUNAL HAS COMMITTED THE MISTAKE OF FOLL OWING THE LATEST INSTRUCTION NO.3 OF 2011 DATED 9.2.2011 WHER EAS THE APPEAL WAS FILED BY THE REVENUE ON 12.11.2010. IN THESE CIRCUMSTANCES, IT IS TO BE SEEN THAT THE LATEST INS TRUCTION NO. 3 OF 2011 DATED 9.2.2011 DID NOT APPLY TO THE IMPUGNED C ASE. THEREFORE, WE HAVE TO HEAR THE APPEAL ON MERITS. 6. ACCORDINGLY, WE RECTIFY THE MISTAKE AND RECALL T HE ORDER OF THE TRIBUNAL DATED 22.6.2011 AND RESTORE THE APPEAL ON THE ROLLS OF THE TRIBUNAL FOR FRESH HEARING AND DISPOSAL ON M ERIT. 7. THIS APPEAL IS POSTED FOR HEARING TO 12 TH OF JUNE, 2012. 8. IN RESULT, THIS MISCELLANEOUS PETITION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 18 TH OF MAY, 2012 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (DR . O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED, THE 18 TH MAY, 2012. MPO* - - MA 36/12 5 COPY TO: 1. ASSESSEE 2. DEPARTMENT 3. CIT 4. CIT(A) 5. DR 6. GF.