Income tax Officer, Ward-1(2)(2), Bangalore V. Sri PV Balaji, Bangalore

MA 65/BANG/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3151 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHANKAR PRASAD K
• Assessee Lawyers: P DINESH
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER M.P. NOS.65 & 66/BANG/2015 (IN I.T . A. NO S . 925 & 926 /BANG/20 1 3) (ASSESSMENT YEAR S : 200 8 - 09 & 2009 - 10 ) D Y. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), BANGALORE . . PETITIONER . VS. SHRI P V BALAJI, NO.27, 5 TH MAIN, 4 TH CROSS, HRBR II BLOCK, KALYANANAGAR, BANGA LORE - 560 043 . .. RESPONDENT. PETITIONER BY : DR. SHANKAR PRASAD K, JCIT (D.R) R E SPONDENT BY : SHRI P. DINESH, ADVOCATE. DATE OF H EARING : 17.07.2015. DATE OF P RONOUNCEMENT : 17.07 .201 5 . O R D E R PER SHRI JASON P. BOAZ , A.M . : TH ESE MISCELLANEOUS PETITIONS ( M.PS ) UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') HAVE BEEN FILE D BY REVENUE SEEKING RECALL OF THE ORDERS OF THIS TRIBUNAL IN ITA NOS.925 & 926/BANG/2013 DT.1.12.2014 WHEREIN THE APPEALS FILED BY REVENUE FOR ASSESSMENT YEARS 2008 - 09 & 2009 - 10 HAVE BEEN DISMISSED FOR LOW TAX EFFECT IN VIEW OF CBDT S INSTRUCTION NO.3/2011 DT. 9.2.2011 AND INSTRUCTION N O .5/2014 DT.10.7.2014. 2. IN THESE M.PS, REVENUE, INTER ALIA, HAS CONTENDED AS UNDER AT PARAS 7 TO 10 THEREOF : - 2 M.P. NOS.65 & 66 /BANG/201 5 (IN ITA NOS.925 & 926/BANG/2013) 07. THE HON'BLE ITAT, BENGALURU, VIDE ITS C OMBINED ORDER ITA NOS.925 & 926/BANG/2013, DT.1.12.2014 HAS DISMISSED THE APPEALS FILED BY THE DEPARTMENT FOR THE SAID A.Y. THE RELEVANT OBSERVATIONS OF THE ITAT, BENGALURU ARE EXTRACTED AS UNDER : - . HOWEVER, IT IS SEEN THAT THE TAX EFFECT IN THE PRE SENT APPEALS IS ONLY RS.3,00,000 FOR THE A.Y. 2008 - 09 . THEREFORE, INVIEW OF THE CBDT INSTRUCTION NO.3/2011 DT.9.2.2 011 AND ALSO CBDT INSTRUCTION NO .5/2014, DT.10.7.2014, THE APPEALS ARE DISMISSED IN VIEW OF HAVING LOW TAX EFFECT. 08. HOWEVER, THERE IS A FACTUAL INACCURACY IN THE ABOVE OBSERVATIONS AS DETAILED UNDER : - THE TAX EFFECT PRESCRIBED AS PER THE ABOVE INSTRUCTIONS ARE RS.3.00 LAKHS AND RS.4.00 LAKHS RESPECTIVELY. THE INSTRUCTION NO.5/2014 IS DT.10.7.2014 AND CLEARLY THE SAID INSTRUCTION COM ES INTO FORCE WITH EFFECT FROM THAT DATE, I.E. 10.7.2014. IN THE INSTRUCTION IT IS CLEARLY MENTIONED THAT THIS INSTRUCTION WILL APPLY TO APPEALS FILED ON OR AFTER 10THJULY, 2014. HOWEVER, THE CASES WHERE APPEALS HAVE BEEN FILED BEFORE 10THJULY, 2014 WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. THE TAX EFFECT INVOLVED FOR THE SAID A.Y. IS RS.3.41 LAKHS APPROXIMATELY. 09. THUS, THE INSTRUCTION NO.5/2014, DT.10.7.2014 CLEARLY STATES THAT THE LIMI T OF TAX EFFECT WILL NOT BE APPLICABLE FOR THE APPEALS WHICH HAVE ALREADY BEEN FILED BEFORE 10.07.2014. IN THE PRESENT ASSESSEE'S CASE, THE APPEALS HAVE BEEN FILED ON 12.6.2013. HENCE, BOTH THE INSTRUCTIONS MENTIONED BY THE HON'BLE ITAT ARE NOT APPLICABL E TO THE PRESENT CASE. 10. IN VIEW OF THE ABOVE MENTIONED FACTS, IT IS SUBMITTED THAT THERE IS A MISTAKE APPARENT FROM THE RECORDS IN THE TRIBUNAL S ORDER, IN HOLDING THAT THE APPEALS FILED BY THE REVENUE HAVE BEEN DISMISSED IN VIEW OF LOW TAX EFFECT. I T IS THEREFORE HUMBLY REQUESTED THAT THE HON'BLE ITAT MAY KINDLY CONSIDER THE CORRECT FACTS AS MENTIONED IN THE PRECEDING PARAS AND AMEND ITS ORDER IN ITA NOS.925 & 926/BANG/2013, DT.1.12.2014 AFTER TAKING INTO CONSIDERATION THE GROUNDS OF APPEAL RAISED BY THE REVENUE AS ELABORATED ABOVE. THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS HEARD IN SUPPORT OF THE ARGUMENTS PUT FORTH IN THESE M.PS AND PLEADED FOR RECALL OF THE IMPUGNED ORDERS OF THE TRIBUNAL SINCE CBDT S INSTRUCTION NO.5/2014 DT.10.7.2014 IS NOT APPLICABLE TO THE APPEALS FILED PRIOR TO THE ISSUE OF THE ABOVE INSTRUCTION. 3. PER CONTRA, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE CONTENDED THAT THERE WAS NO ERROR OR MISTAKE APPARENT IN THE IMPUGNED ORDERS OF THE TRIBUNAL THAT WA RRANTED RECTIFICATION UNDER SECTION 254(2) OF THE ACT AND THEREFORE THESE M.PS FILED BY REVENUE ARE 3 M.P. NOS.65 & 66 /BANG/201 5 (IN ITA NOS.925 & 926/BANG/2013) LIABLE TO BE DISMISSED. IN THIS REGARD, THE LEARNED AUTHORISED REPRESENTATIVE S RELIANCE ON THE DECISION OF THE ITAT, DELHI BENCH IN THE CASE OF ITO V M/ S. NIKSUN INDIA (P) LTD. IN ITA NO.4585/DEL/2011, SUBMITTING THAT IN THIS ORDER THE DELHI BENCH HAD HELD THAT CBDT INSTRUCTION NO.5/2014 DT.10.7.2014 WILL APPLY TO ALL PENDING APPEALS AND THEREFORE THE TAX EFFECT IN THE CASE ON HAND BEING LESS THAN RS.4 L ACS IN EACH YEAR, THE APPEALS FOR THE RELEVANT ASSESSMENT YEARS WHICH WERE PENDING FOR AS ON DATE OF THE CBDT INSTRUCTION (SUPRA) WERE CORRECTLY HELD TO BE NOT MAINTAINABLE AND DISMISSED IN VIEW OF HAVING LOW TAX EFFECT. 4.1 WE HAVE HEARD THE RIVAL CO NTENTIONS IN THE MATTER AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. THE UNDISPUTED FACTS ARE THAT THE TAX EFFECT IN REVENUE S APPEALS WAS RS.3 LAKHS FOR ASSESSMENT YEAR 2008 - 09 AND RS.3.25 LAKHS FOR ASSESSMENT YEAR 2009 - 10. WE FIND TH AT A SIMILAR ISSUE ON THE MAINTAINABILITY OF APPEAL FOR LOW TAX EFFECT WAS CONSIDERED BY THE DELHI BENCH IN THE CASE OF NIKSUN INDIA (P) LTD. (SUPRA). THE ITAT, DELHI BENCH IN THIS CASE, FOLLOWING THE DECISIONS OF THE HON'BLE APEX COURT IN ITA NOS. 3 TO 5 / 2010 DT.25.3.2011 AND OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V DELHI RACE CLUB LTD. IN ITA NO.128/2008 DT.3.3.2011, HELD THAT CBDT S INSTRUCTION NO.5/2014 DT.10.7.2014 WILL APPLY TO ALL PENDING APPEALS AND, THEREFORE PENDING APPEALS IN CASE S FILED BY REVENUE WHERE THE TAX EFFECT IS LESS THAN RS.4 LAKHS ARE NOT MAINTAINABLE AND ARE TO BE DISMISSED IN LIMINE. AT PARAS 4 TO 5 OF THIS ORDER, THE ITAT, DELHI BENCH HAS HELD AS UNDER : - 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE MATER IAL AVAILABLE ON RECORD. INSTRUCTION NO.5/2014 DT.10.7.2014 HAS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL, HON'BLE HIGH COURTS AND HON'BLE SUPREME COURT. MONETARY LIMIT FOR FILING THE APPEAL B EFORE THE TRIBUNAL IS RS.4.00 LAKH; BEFORE HON'BLE HIGH COURT RS.10.00 LAKHS AND BEFORE THE HON'BLE SUPREME 4 M.P. NOS.65 & 66 /BANG/201 5 (IN ITA NOS.925 & 926/BANG/2013) COURT RS.25.00 LAKHS. HON'BLE SUPREME COURT IN THE ORDER DT.25.3.2011 REFERRED TO ABOVE HAS HELD AS UNDER : - IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CASES IS LESS THAN RS.10 LACS. THE DEPARTMENT HAS RECENTLY ISSUED AN INSTRUCTION BEARING NO.3/2011 DT.9.2.2011, WHICH IS IDENTICAL TO ITS EARLIER INSTRUCTION BEARING NO.5/2008 DT.15.5.2008 EXCEPT THAT IN SO FAR AS THE HIGH COURT IS CONCERNE D, THE MONETARY LIMIT IN RESPECT OF APPEALS WHERE THE QUESTIONS OF LAW RAISED NEED NOT TO BE ANSWERED, HAS BEEN RAISED FROM RS.4.00 LACS TO RS.10.00 LACS. THE DIVISION BENCH OF THIS COURT IN ITA NO.89/1999 DECIDED ON 28.1.2011 HAS ALREADY HELD THAT THE I NSTRUCTION BEARING NO.5/2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. ; THIS PRINCIPLE WOULD THUS NATURALLY EQUALLY APPLY TO THE INSTANT INSTRUCTION BEARING NO.3/2011 DT.9.2.2011, AS WELL. THE TAX EFFECT BEING LESS THAN RS.10.00 LACS, T HE QUESTION OF LAW DOES NOT REQUIRE TO BE ANSWERED. THE APPEALS ARE DISPOSED OF ACCORDINGLY. 4.1 HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO.128/2008 DT.3.3.2011 HAS HELD AS UNDER : - THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS.4,65,860. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN RS.10.00 LACS, ARE NOT TO BE ENTERTAINED. THIS COURT IN THE CASE OF CIT, DELHI - III VS. M/S. P.S. JAIN & CO. BEING ITA NO.179/1 991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 4.2 IN VIEW OF THE ABOVE, INSTRUCTION NO.5/2014 DT.10.7.2014 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLLOWING THE PRECEDENT, IT IS HELD TH AT THE APPEAL IS NOT MAINTAINABLE IN THE INSTANT CASE AS THE TAX EFFECT IS LESS THAN RS.4 LACS. ACCORDINGLY, IT IS HELD THAT APP E AL FILED BY THE REVENUE IS NOT MAINTAINABLE. 5. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS DISMISSED WITHOUT GOING INTO T HE MERITS. 4.2 FOLLOWING THE DECISION OF THE ITAT, DELHI BENCH IN THE CASE OF NIKSUN INDIA (P) LTD. (SUPRA ), WHICH FOLLOWED THE PRECEDENTS LAID DOWN IN THE DECISION S OF THE HON'BLE APEX COURT IN ITA NOS.3 TO 5/2010 DT.25.3.2011 AND OF THE HON'BLE DE LHI HIGH COURT IN THE CASE OF DELHI RACE CLUB LTD. (SUPRA), WE HOLD THAT CBDT INSTRUCTION NO.5/2014 DT.10.7.2014 WILL APPLY TO ALL PENDING APPEALS AND THEREFORE THE IMPUGNED ORDERS OF THE TRIBUNAL DISMISSING THE REVENUE S APPEALS FOR ASSESSMENT YEARS 2008 - 09 AND 2009 - 10, FOR LOW TAX EFFECT OF LESS THAN RS.4 LAKHS; ARE IN ORDER. SINCE THE TAX EFFECT IN REVENUE S APPEALS ARE RS.3 LAKHS AND RS.3.25 LAKHS IN THE IMPUGNED 5 M.P. NOS.65 & 66 /BANG/201 5 (IN ITA NOS.925 & 926/BANG/2013) ORDERS FOR ASSESSMENT YEARS 2008 - 09 & 2009 - 10 RESPECTIVELY, THESE APPEALS WERE CORRECTLY H ELD TO BE NOT MAINTAINABLE AND DISMISSED IN LIMIN E BY OUR ORDERS DT.11.2.2014. C ONSEQUENTLY, THERE BEING NO MISTAKE APPARENT FROM THE RECORD IN THE IMPUGNED ORDERS AS ENVISAGED IN SECTION 254(2) OF THE ACT , THESE MPS FILED BY REVENUE ARE DISMISSED. 5. IN THE RESULT, THE M.PS FILED BY REVENUE FOR ASSESSMENT YEARS 2008 - 09 & 2009 - 10 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JULY, 2015. SD/ - (P. MADHAVI DEVI) JUDICIAL MEMBER SD/ - (JASON P BOAZ) ACCOUNTANT MEMBER *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, BANGALORE