DCIT Cir 32), Malegaon V. M/S Vyankatesh & Co, Malegaon

MA 71/PUN/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1921 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-05-2014
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 25-04-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 21-06-2013
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER MA NO. 71/PN/2013 ARISING OUT OF ITA NO.337/PN/2010) (ASST.YEAR: 2006-07) DY.CIT, CIRCLE-3, MALGAON .. APPLICANT VS. M/S. VYANKATESH & COMPANY, GAGANGIRI COMPLEX, CAMP ROAD, MALEGAON, NASHIK PAN NO.AAFFV0638J .. RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI S.P. WALIMBE DATE OF HEARING : 25-04-2014 DATE OF PRONOUNCEMENT : 20-05-2014 ORDER PER R.K.PANDA, AM : THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL ITS ORDER DISMISSING THE APPEAL FILE BY THE REVENUE ON THE GROUND THAT THE TAX EFFECT IS LESS THAN 3 LAKHS . 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY T HE REVENUE IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECOR D AND AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 3. THE LD. DEPARTMENTAL REPRESENTATIVE REFERRED TO PARA 5, 6 AND 7 OF THE MISCELLANEOUS APPLICATION WHICH READS AS UND ER : 2 5. THE HON'BLE ITAT HAS DISMISSED THE APPEAL OF THE RE VENUE ON TECHNICAL GROUND. IT IS HELD THAT THE DEPARTMENT HAS CHALLENGED THE DELETION OF RS. 7,55,004/-. THE TAX EFFECT IS LESS THAT RS. 3,00,000/-. THEREFORE IN VIEW OF CBDT'S INSTRUCTION NO.3 DATED 09 /02/2011 AS WELL AS DECISION OF COORDINATE BENCHES OF TRIBUNAL AND JURI SDICTIONAL HIGH COURT THE APPEAL IS NOT MAINTAINABLE. 6. THE DECISION OF ITAT IS NOT ACCEPTABLE AS THE APPEA L WAS FILED EARLIER TO THE ISSUE OF INSTRUCTION NO.3 DATED 9/02201 1 AND THEREFORE THIS APPEAL IS NOT COVERED BY THIS CIRCULAR. THE APPEA L WAS FILED AS THE TAX EFFECT WAS MORE THAN 2,00,000/-. THE APPEAL FILED AS PER EARLIER CIRCULAR IN WHICH THE LIMIT FOR FILING AN APPEAL WAS RS.2,00,0 00/-. 7. THE TAX EFFECT OF THE CASE IS LESS THAN THE PRESCRI BED LIMIT FOR FILING OF APPEAL BEFORE THE HON. ITAT AS MAINTAINED IN INST RUCTION 03/2011. YOUR KIND ATTENTION IS DRAWN ON THE OBSERVATION OF TH E HON APEX COURT IN THE CASE OF SURYA HERBAL PVT LTD IN SLP(C) CC NO. 13694 OF 2011 WHERE THE HON APEX COURT HAS DIRECTED THE DEPARTMENT TO F ILE A REVIEW PETITION IN HIGH COURT PRAYING FOR NOT APPLYING THE INSTRUCT ION NO.03/2011 ISPO FACTO IN RESPECT OF THE APPEALS FILED BEFORE 09/02/2011. I N THIS CASE, THE DEPARTMENT HAD FILED AN APPEAL BEFORE CAME INTO FOR CE. THEREFORE, THE CIRCULAR NO.3/2011IS NOT APPLICABLE IN THE PRESENT FA CTS OF THE CASE. IN VIEW OF THE OBSERVATION OF THE HON'BLE SUPREME COURT AND ABOVE DISCUSSION, IT IS KINDLY REQUESTED TO RECALL THE ORDER D ATED 29/08/2012. 3.1 REFERRING TO THE ABOVE HE SUBMITTED THAT THE SA ME IS SELF- EXPLANATORY AND THEREFORE THE ORDER OF THE REVENUE SHOULD BE RECALLED. 4. WE HAVE CONSIDERED THE CONTENTS OF THE MISCELLAN EOUS APPLICATION AND HEARD THE LD. DEPARTMENTAL REPRESENTATIVE. WE FIND IN THE INSTANT CASE THE TRIBUNAL DISMISSED THE APPEAL FILED BY THE REVENUE HOLDING THAT THE TAX EFFECT ON THE GROUND RAISED BY THE REVENUE IS LESS THAN RS. 3 LAKHS AND THEREFORE IN VIEW OF CBDT INSTRUCTION NO. 03/2011 DATED 09- 02-2011 AS WELL AS THE DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL AND JURISDICTIONAL HIGH COURT THE APPEAL I S NOT MAINTAINABLE. IT IS THE CASE OF THE REVENUE THAT SINCE THIS APPEAL I S FILED EARLIER TO THE ISSUE OF INSTRUCTION NO.03/2011 DATED 09-02-2011, T HEREFORE, THIS IS NOT COVERED BY THE CIRCULAR. ACCORDING TO THE REVENUE, AS PER THE EARLIER CIRCULAR, THE MONETARY LIMIT FOR FILING OF APPEAL W AS RS. 2 LAKHS. SINCE IN 3 THE INSTANT CASE THE TAX EFFECT IS MORE THAN RS. 2 LAKHS ALTHOUGH IT IS LESS THAN RS.3 LAKHS, THEREFORE, THE CIRCULAR NO.03/2011 IS NOT APPLICABLE IN THE PRESENT CASE AND THE APPEAL HAS TO BE DECIDED O N MERIT. 4.1 WE DO NOT FIND ANY FORCE IN THE ABOVE ARGUMENT OF THE LD. DEPARTMENTAL REPRESENTATIVE. IT HAS BEEN DECIDED I N VARIOUS DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL THAT THE INS TRUCTIONS ISSUED IN THE CIRCULAR BY CBDT ARE APPLICABLE FOR PENDING CASES A LSO. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT INSTRUCTION NO.0 3/2011 DATED 09-02- 2011 IS APPLICABLE FOR PENDING CASES ALSO. SINCE T HE MONETARY LIMIT IN THE INSTANT CASE IS ADMITTEDLY LESS THAN RS.3 LAKHS , THEREFORE, THE TRIBUNAL IS JUSTIFIED IN DISMISSING THE APPEAL FILED BY THE REVENUE. 4.2 SO FAR AS THE ARGUMENT OF THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE HONBLE SUPREME COURT IN THE CASE OF SURYA HERBAL PVT. LTD. HAS DIRECTED THE DEPARTMENT TO FILE A REVIEW PETITION I N HIGH COURT PRAYING FOR NON-APPLICATION OF THE INSTRUCTION NO.03/2011 I PSO FACTO IN RESPECT OF THE APPEALS FILED BEFORE 09-02-2011, WE FIND THE LD . DEPARTMENTAL REPRESENTATIVE COULD NOT PRODUCE ANY MATERIAL BEFOR E US THAT THE HONBLE HIGH COURT HAS TAKEN A VIEW REVERSING ITS EARLIER D ECISION THAT INSTRUCTION NO.03/2011 WILL NOT APPLY IPSO FACTO IN RESPECT OF THE APPEALS FILED BEFORE 09-02-2011. 4.3 SINCE THE TRIBUNAL WHILE DISMISSING THE APPEAL FILED BY THE REVENUE HAS FOLLOWED THE RATIO OF THE DECISION OF T HE JURISDICTIONAL HIGH COURT, THEREFORE, IN ABSENCE OF ANY CONTRARY MATERI AL BROUGHT TO OUR NOTICE, WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL 4 DISMISSING THE APPEAL OF THE REVENUE HOLDING THAT T HE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE IN VIEW OF TAX EFFECT B EING BELOW RS.3 LAKHS. NO OTHER APPARENT MISTAKE WAS POINTED OUT B Y THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL. ACCORDINGLY, TH E MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 20-05-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PAN DA) JUDICIAL MEMBER ACCOUNT ANT MEMBER SATISH PUNE DATED : 20 TH MAY, 2014. COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-II, NASHIK 4. CIT-II, NASHIK 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, ITAT, PUNE BENCHES, PUN E