DCIT, V. ALCHEM GASES & CHEMICAL P. LTD,

MA 562/MUM/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0961 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 02-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; Tax effect

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . , , ! ! ! ! '# $% '# $% '# $% '# $% , ,, , & & & & ' ' ' ' BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER (!(! !) . / M.A. NO.562/MUM./2011 ( . / ITA NO. 3988/MUM./2009 +,# - ( &) . !/. / ASSESSMENT YEARS : 200405 ) DY. COMMISSIONER OF INCOME TAX PALGHAR CIRCLE, PALGHAR AAYAKAR BHAVAN, BIDCO ROAD PALGHAR, DISTRICT THANE .. ! / APPLICANT ) V/S M/S. ALCHEM GASES AND CHEMICALS PVT. LTD., PLOT NO.T12, MIDC TARAPUR, BOISAR, TAL. PALGHAR .... 0123 / RESPONDENT 2 . / PERMANENT ACCOUNT NUMBER AABCA4554F 5 ! 6 7 / REVENUE BY : MS. NEERAJA PRADHAN &) .8# 6 7 / ASSESSEE BY : NONE )! 6 # / DATE OF HEARING 23.08.2013 $ 9/ 6 # / DATE OF ORDER 23.08.2013 $ $ $ $ / ORDER . , : : : : / PER B. RAMAKOTAIAH, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN PREF ERRED BY THE REVENUE FOR RECALL OF THE IMPUGNED ORDER DATED 30 TH MARCH 2011, PASSED BY M/S. ALCHEM GASES AND CHEMICALS PVT. LTD. 2 THE TRIBUNAL, MUMBAI BENCH, IN ITA NO.3988/MUM./200 9, FOR THE ASSESSMENT YEAR 200405, WHICH WAS DISMISSED DUE TO LOW TAX EF FECT. 2. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATIVE, REITERATED THE CONTENTS OF THE MISCELLANEOUS APPLICATION THAT AS P ER THE LETTER DATED 2 ND SEPTEMBER 2011, RECEIVED FROM THE DIRECTOR OF INCOM E TAX (L&R)1, NEW DELHI, WHEREIN IT HAS BEEN STATED THAT INSTRUCTION NO.3, LAYING DOWN THE MONETARY LIMITS FOR FILING APPEAL TO ITAT, HIGH COU RT AND SLP TO SUPREME COURT APPLIES ONLY TO APPEALS FILED ON OR AFTER 9 TH FEBRUARY 2011. CASES WHERE APPEALS HAVE BEEN FILED BEFORE 9 TH FEBRUARY 2011, CONTINUE TO BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERA TIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. THE LEARNED DEPARTMENTAL REP RESENTATIVE, THEREFORE, PRAYED THAT THE ORDER PASSED BY THE TRIBUNAL MAY PL EASE BE RECALLED AND RE ADJUDICATED. 3. NONE APPEARED ON BEHALF OF THE RESPONDENT ASSESSEE. 4. AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATI VE, WE FIND THAT AS PER CBDT INSTRUCTION NO.3 OF 2011, DATED 9 TH FEBRUARY 2011, THE APPEAL BEFORE THE APPELLATE TRIBUNAL CAN BE FILED BY THE R EVENUE, WHEN THE TAX EFFECT EXCEEDS THE MONITORY LIMIT OF ` 3,00,000. HOWEVER, THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V/S MADHUKAR K . INAMDAR (HUF), [2009] 318 ITR 149 (BOM.) HAS HELD THAT SUCH CIRCUL ARS ARE APPLICABLE ON PENDING APPEALS ALSO. THE RELEVANT OBSERVATIONS ARE AS UNDER: THE CIRCULAR DATED MAY 15, 2008 IN GENERAL AND PAR AGRAPH (5) THEREOF IN PARTICULAR LAY DOWN THAT EVEN IF THE SAME ISSUE, IN RESPECT OF THE SAME ASSESSEE, FOR OTHER ASSESSMENT YEARS IS INVOLV ED, THE DEPARTMENT SHOULD NOT FILE APPEAL, IF THE TAX EFFEC T IS LESS THAN ` 4 LAKHS. IN OTHER WORDS, EVEN IF THE QUESTION OF LAW IS OF RECURRING NATURE, THE REVENUE IS NOT EXPECTED TO FILE APPEALS IN SUCH CASES, IF THE TAX IMPACT IS LESS THAN THE MONETARY LIMIT FIXE D BY THE CENTRAL BOARD OF DIRECT TAXES. THE BOARD HAS ALSO ISSUED A CIRCULAR ON JUNE 5, 2007, DIRECTING THE DEPARTMENT TO EXAMINE ALL APPEA LS PENDING BEFORE THE COURT ON A CASE TO CASE BASIS WITH FURTHER DIRE CTION TO WITHDRAW CASES WHEREIN THE CRITERIA OF MONETARY LIMITS AS PE R THE PREVAILING INSTRUCTION ARE NOT SATISFIED, UNLESS THE QUESTION OF LAW INVOLVED OR M/S. ALCHEM GASES AND CHEMICALS PVT. LTD. 3 RAISED IN APPEAL OR REFERRED TO THE HIGH COURT FOR OPINION IS OF A RECURRING NATURE REQUIRED TO BE SETTLED BY THE HIGH ER COURT. THE CIRCULAR MAKES IT CLEAR THAT ON THE DATE OF ISSUANC E OF THE CIRCULAR, PREVAILING INSTRUCTIONS FIXING MONETARY LIMIT WILL HOLD GOOD EVEN FOR PENDING CASES. THE CIRCULAR DATED MAY 15, 2008 WOUL D BE APPLICABLE TO PENDING CASES REQUIRING THE DEPARTMENT TO WITHDRAW CASES WHEREIN THE TAX EFFECT IS LESS THAN THE PRESCRIBED MONETARY LIMITS. THE CIRCULAR DATED MAY 15, 2008, WOULD BE APPLICABLE TO CASES PE NDING BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL AN D IT IS BINDING ON THE REVENUE. 5. SIMILAR VIEW WAS TAKEN BY THE HON'BLE JURISDICTIONA L HIGH COURT IN THE JUDGMENT IN CIT V/S PITHWA ENGINEERING WORKS, [2005 ] 276 ITR 519 (BOM.), AND THE HON'BLE DELHI HIGH COURT IN M/S. P.S. JAIN & CO., [2011] 335 ITR 591 (DEL.). APPLYING THE PROPOSITIONS LAID DOWN IN THES E CASE LAWS TO THE FACTS OF THE PRESENT CASE, THE REVENUES MISCELLANEOUS APPLI CATION IS LIABLE TO BE DISMISSED. 6. 8 #; 5 ! 6 (!(! !) 85 ) 5# <= > 7. IN THE RESULT, REVENUES M.A. IS TREATED AS DISM ISSED. $ 6 / ? @); 23 RD AUGUST 2013 6 A > ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD AUGUST 2013 SD/- '# '# '# '# $% $% $% $% & & & & AMIT SHUKLA JUDICIAL MEMBER SD/- . .. . B. RAMAKOTAIAH ACCOUNTANT MEMBER MUMBAI, @) @) @) @) DATED: 23 RD AUGUST 2013 M/S. ALCHEM GASES AND CHEMICALS PVT. LTD. 4 $ 6 0&#'( B(/# / COPY OF THE ORDER FORWARDED TO : (1) &) .8# / THE ASSESSEE; (2) 5 ! / THE REVENUE; (3) C () / THE CIT(A); (4) C / THE CIT, MUMBAI CITY CONCERNED; (5) (!FA 0&#&) , , / THE DR, ITAT, MUMBAI; (6) AG. H / GUARD FILE. 1(# 0&# / TRUE COPY $) / BY ORDER 0 5. IJ / PRADEEP J. CHOWDHURY !8K &)5 I! / SR. PRIVATE SECRETARY + / < 5 / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI