ACIT, CHENNAI V. Trademin Internatiional Pvt Ltd., CHENNAI

MA 372/CHNY/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6712 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 11-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A S SRIRAMAN
• Keywords: Audit objection; Question of law; Tax effect; Reassessment proceedings
• Section: 143(3); 80HHC; 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI . , . . , BEFORE SHRI ABRAHAM P.GEORGE, ACCOUNTANT MEMBER AND SHRI DUVV URU RL REDDY , JUDICIAL MEMBER M . P . NO. 372 /CHNY/20 17 (IN I . T . A . NO. 1256 /CHNY/201 3 ) ASSESSMENT YEAR: 20 03 - 04 THE ASST. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE - 3(1), CHENNAI. VS. M/S.TRADEMIN INTERNATIONAL PVT. LTD., NEW N O.6, OLD NO.18, 3 RD FLOOR, 4 TH LANE, NUNGAMBAKKAM, CHENNAI - 600 034. [PAN: AABCT3765H] ( /APPELLANT) ( /RESPONDENT) DEPARTMENT BY : MR. AR.V.SREENIVASAN, JCIT ASSESSEE BY : MR. A.S. SRIRAMAN, ADV OCATE / DATE OF HEARING : 16.03 .201 8 / DATE OF PRONOUNCEMENT : 12 . 0 6 .2018 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS PETITION FILED BY THE DEPARTMENT IS AGAINST THE ORDER OF THE TRIBUNAL IN I.T.A. NO. 1256/MDS/2013 DATED 21 .06.2017 RELEVANT TO THE ASSESSMENT YEAR 2003 - 04. THE GRIEVANCE OF THE REVENUE IS THAT THE TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE ON LESS TAX EFFECT. HOWEVER, THE LD. DR SUBMITTED THAT THE ISSUE IS COVERED BY REVENUE AUDIT OBJECTION ACCEPTED BY THE DEPARTMENT AND HENCE THE TAX EFFECT IS NOT APPLICABLE AS PER PARA 8(C) OF THE CBDT CIRCU LAR NO. 21/2015 DATED 10.12.2015 AND PLEADED THAT THE ORDER OF THE TRIBUNAL MAY BE RECALLED AND DECIDED THE ISSUE ON MERITS. : - 2 - : MP NO.372/CHNY/2017 (IN ITA NO. 1256 / CHNY /201 3) 2. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT NO DOCUMENTARY EVIDENCE HAS BEEN PLACED BEFORE THE TRIBUNA L AT THE TIME OF HEARING OF THE ORIGINAL APPEAL TO SAY THAT THERE WAS AUDIT OBJECTION AND SUCH AUDIT OBJECTION WAS ACCEPTED BY THE DEPARTMENT AND PRAYED THAT THE PETITION FILED BY THE DEPARTMENT IS LIABLE TO BE DISMISSED. HE RELIED ON THE DECISION IN THE C ASE OF PCIT V. PARAGON STEELS PVT. LTD. IN T.C.A. NO. 579 OF 2017 DATED 07.12.2017. 3. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THIS CASE, THE ASSESSMENT UNDER SECTION 143(3) R.W. SECTION 147 OF THE INCOME TAX ACT , 1961 [ ACT IN SHORT] WAS COMPLETED BY MAKING DISALLOWANCE OF DEDUCTION CLAIMED UNDER SECTION 80HHC OF THE ACT. ON PERUSAL OF THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W. SECTION 147 OF THE ACT, WE FIND THAT THERE WAS NO MENTION IN THE ASSESSMENT ORDER THAT THE REASSESSMENT PROCEEDINGS WERE INITIATED ON THE BASIS OF AUDIT OBJECTION. 4. ADMITTEDLY, THE TAX EFFECT IN THE ORIGINAL APPEAL FILED BY THE REVENUE WAS LESS THAN THE MONETARY LIMIT OF .10,00,000/ - FIXED BY THE CBDT TO FILE AN APPEAL BY THE RE VENUE BEFORE THE TRIBUNAL AS PER THE CBDT CIRCULAR NO. 21/2015 DATED 10.12.2015, WHICH WAS ACCEPTED BY THE LD. DR. THUS, THE TRIBUNAL HELD THAT THE REVENUE AUTHORITIES ARE PRECLUDED FROM FILING THE APPEAL BEFORE THE TRIBUNAL SINCE THE TAX EFFECT WAS LESS T HAN .10,00,000/ - AND ACCORDINGLY, THE TRIBUNAL DISMISSED THE APPEAL AS UN - ADMITTED. : - 3 - : MP NO.372/CHNY/2017 (IN ITA NO. 1256 / CHNY /201 3) 5. HOWEVER, THE REVENUE HAS FILED THE PRESENT PETITION TO RECALL THE ORDER OF THE TRIBUNAL DATED 21.06.2017 AND ADJUDICATE THE ISSUE ON MERITS ON THE GROUND THAT THERE WAS AUDIT OBJECTION AND SUCH AUDIT OBJECTION WAS ACCEPTED BY THE DEPARTMENT. ON PERUSAL OF THE APPROVAL GRANTED BY THE COMMISSIONER OF INCOME TAX, CHENNAI - III (I/C), CHENNAI UNDER RULE 15 OF APPELLATE TRIBUNAL RULES, 1963, IT APPEARS THAT THE APPEAL WAS FILED BY THE REVENUE IN THE REGULAR COURSE AND NOT ON THE BASIS OF AUDIT OBJECTION. THEREFORE, IT IS OBVIOUS THAT PARA 8 OF CIRCULAR NO.21 OF 2015 ISSUED BY CBDT IS NOT APPLICABLE. 6. FURTHER, WE FIND THAT AGAINST DISMISSAL OF THE MISCELLANEOUS PETITION FILED BY THE REVENUE IN THE CASE OF DCIT V. PARAGON STEELS PVT. LTD. IN M.P. NO. 214/MDS/2016 [IN I.T.A. NO. 887/MDS/2015] DATED 03.03.2017, THE REVENUE PREFERRED FURTHER APPEAL BEFORE THE HON BLE MADRAS HIGH COURT IN T.C.A. NO. 579 OF 2017. WHILE DISMISSING TH E APPEAL FILED BY THE REVENUE, THE HON BLE JURISDICTIONAL HIGH COURT HAS HELD AS UNDER: 3. THE SAID MISCELLANEOUS PETITION WAS FILED BY THE REVENUE BEFORE THE TRIBUNAL ON THE GROUND THAT CIRCULAR NO. 21/2015 OF THE CENTRAL BOARD OF DIRECT TAXES IS NOT APP LICABLE TO THE APPEAL FILED BY THE REVENUE. THE TRIBUNAL VERIFIED THE ORIGINAL FILES AND ON PERUSAL OF THE APPROVAL GRANTED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX UNDER RULE 15 OF THE APPELLATE TRIBUNAL RULES, 1963, THE TRIBUNAL FOUND THAT THE APPEAL WAS FILED IN THE REGULAR COURSE AND NOT ON THE BASIS OF THE AUDIT OBJECTIONS. THE TRIBUNAL ULTIMATELY CONCLUDED THAT PARAGRAPH 8 OF CIRCULAR NO. 21/2015 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES IS NOT APPLICABLE AND ACCORDINGLY, THE SAID MISCELLANEOUS PETITION FILED BY THE REV ENUE WAS REJECTED. THE TRIBUNAL, AFTER HAVING CONSIDERED THE FACTUAL POSITION AND VERIFIED THE ORIGINAL FILES, HAS TAKEN A DECISION IN THE MATTER AND WE FIND NO SUBSTANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION IN THIS APPEAL, AS THE ENTIRE FINDING IS F ACTUAL. 4. FOR THE ABOVE REASONS, THE ABOVE TAX CASE APPEAL IS DISMISSED. : - 4 - : MP NO.372/CHNY/2017 (IN ITA NO. 1256 / CHNY /201 3) IN VIEW OF THE IDENTICAL FACTS AND CIRCUMSTANCES AND RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE HON BLE MADRAS HIGH COURT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE STANDS DISMISSED. 7. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 12 TH JUNE , 201 8 , IN CHENNAI. SD/ - SD/ - ( . ) ( ABRAHAM P. GEORGE ) /ACCOUNTANT MEMBER ( . . ) ( DUVVURU R.L. REDDY ) /JUDICIAL MEMBER / CHENNAI , / DATED: 12. 06. 2018 . VM / COPY TO: 1. / AP PELLANT 4. / CIT 2. / RESPONDENT 5. / DR 3. ( ) / CIT(A) 6. / GF