Smt Kripa amar Alva, Mangalore V. Income tax officer, Ward-1(2), Mangalore

MA 67/BANG/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4645 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RENUKADEVI
• Assessee Lawyers: VANAJA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE S HRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER M.P. NO.67/BANG/2016 (IN I.T . A. NO. 1095 /BANG/20 13) (ASSESSMENT YEAR : 20 09 - 10 ) SMT. KRIPA AMAR ALVA, D.NO.3 - 31 - 2517/1, PRAKRITHI NILAYA, VYSASA RAO LANE, KADRI, M ANGALORE. . PETITIONER . VS. INCOME TAX OFFICER, WARD 1(2 ) , M ANGALORE. .. RESPONDENT. PETITIONER BY : S MT. VANAJA, ADVOCATE. R E SPONDENT BY : SMT. RENUKADEVI, JCIT (D.R) DATE OF H EARING : 1.7.2016. DATE OF P RONOUNCEMENT : 11 .8 .201 6 . O R D E R PER SHRI VIJAY P AL RAO, J .M . : IN THIS MISC. PETITION THE ASSESSEE HAS STATED THAT IN VIEW OF THE CBDT CIRCLE NO.21/2015 DT.10.12.2015, THE DEPARTMENT S APPEAL DECIDED BY THIS TRIBUNAL ORDER DT.20.1.2016 BECOMES NON - MAINTAINABLE DUE TO THE LOW TAX EFFECT BEING LESS THAN RS.10 LAKHS. THUS IT IS PRAYED IN THE M.P. 2 M.P. NO.67/BANG/2016 (IN IT A NO. 1095 /BANG/201 3) THAT THE IMPUGNED ORDER DT.20.1.2016 MAY BE RECALLED AND THE REVENUE S APPEAL BE DISMISSED AS NOT MAINTAINABLE BY VIRTUE OF THE CBDT CIRCULAR NO.21/2015 DT.10.12.2015. 2. WE HAVE HEARD THE LEARNED AUTHORISED REPRESENTATIVE AS WELL AS LEARNED DEPARTMENTAL REPRESENTATIVE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. AR HAS POINTED OUT THAT THE TAX EFFECT IN THE REVENUE S APPEAL IS RS.6,05,419 . THE TRIBUNAL HEARD THE APPEAL OF THE REVENUE ON 10.12.2015 WITHOUT CONSIDERING THE CBDT CIRCULAR NO.21/2015 DT.10.12.2015. THEREFORE THERE IS A MISTAKE APPARENT IN THE IMPUGNED ORDER BECAUSE ON THE DATE WHEN THE APPEAL OF THE REVENUE WAS T A KEN UP FOR H EARING IT WAS NOT MAINTAINABLE. THUS THE LEARNED AUTHORISED REPRESENTATIVE HAS PLEADED THAT THE IMPUGNED ORDER MAY BE RECALLED. 3. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT WHEN THE TRIBUNAL HAS ALREADY DECIDED THE APPEAL ON MERITS, THEN WITH OUT POINTING OUT ANY SPECIFIC MISTAKE IN THE ORDER, THE SAME CANNOT BE RECALLED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). THUS THE LEARNED 3 M.P. NO.67/BANG/2016 (IN IT A NO. 1095 /BANG/201 3) DEPARTMENTAL REPRESENTATIVE HAS STRONGLY OBJECTED TO THE MISC. PETITION FILED BY THE A SSESSEE. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND RELEVANT MATERIAL ON RECORD, WE FIND THAT THE REVENUE S APPEAL WAS HEARD ON 10.12.2015 AND THEREAFTER THE IMPUGNED ORDER WAS PASSED ON 20.1.2016 BY THIS TRIBUNAL. THERE IS NO DISPUTE THAT ON 10.1 2.2015 THE CBDT ISSUED THE CIRCULAR NO.21/2015 WHEREBY THE MONETARY LIMIT FOR THE APPEALS FILED BY THE DEPARTMENT BEFORE THIS TRIBUNAL WAS ENHANCED TO RS.10 LAKHS. IN THIS CASE, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT DISPUTED THAT THE TAX EFFECT IN THE REVENUE S APPEAL IS RS.6,05,419 AND THEREFORE BY VIRTUE OF THIS CIRCULAR NO.21/2015 DT.10.12.2015, THE APPEAL OF THE REVENUE BECAME NOT MAINTAINABLE. HOWEVER THE SAID CIRCULAR WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL DUE TO THE EVEN DATE OF HE ARING THEREFORE THE NON - CONSIDERATION OF THE CIRCULAR WHICH RENDERS THE REVENUE S APPEAL NOT MAINTAINABLE AND DIRECT THE REVENUE TO WITHDRAW SUCH APPEALS HAVING THE TAX EFFECT LESS THAN RS.10 LAKHS AMOUNTS A MISTAKE APPARENT ON RECORD. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THERE IS A MISTAKE IN THE IMPUGNED ORDER FOR NOT 4 M.P. NO.67/BANG/2016 (IN IT A NO. 1095 /BANG/201 3) CONSIDERING THE CIRCULAR NO.21/2015 IS REQUIRED TO BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. HENCE WE RECALL THE IMPUGNED ORDER DT.21.1.201 6. SINCE IT IS AN ADMITTED FACT THAT THE TAX EFFECT IN THE REVENUE S APPEAL IS LESS THAN RS.10 LAKHS THEREFORE THE SAME IS NOT MAINTAINABLE IN VIEW OF THE CBDT CIRCULAR NO.21/2015 WHICH PRESCRIBED IN PARAS 3, 4 & 10 ARE AS UNDER : 3. HENCEFORTH, AP PEALS/SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S.NO. APPEALS IN INCOME - TAX MATTERS MONETARY LIMIT (IN RS.) 1. BEFORE APPELLATE TRIBUNAL 10,00,000/ - 2. BEFORE HIGH COURT 20,00,000/ - 3 . BEFORE SUPREME COURT 25,00,000/ - IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE F ILED (HEREINAFTER REFERRED TO AS DISPUTED ISSUES ). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTE REST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE 5 M.P. NO.67/BANG/2016 (IN IT A NO. 1095 /BANG/201 3) OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. AP PEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. HENCE, THE APPEAL OF THE REVENUE IS HIT BY THE CBDT CIRCULAR NO.21/2015 AND CONSEQUENTLY DISMISSED AS NOT MAINTAINABLE . 5. IN THE RESULT, THE MISC. PETITION BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 11TH DAY OF AUG., 2 01 6 . SD/ - ( INTURI RAMA RAO ) ACCOUNTANT MEMBER SD/ - ( VIJAY PAL RAO ) JUDICIAL MEMBER *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE. BY ORDER ASST. REGISTRAR, ITAT, BANGALORE