M/s Shivnarayan Nandram Garg Proip Late Madanlal Garg Through L/H Shri Radheshyam Agrawal, Indore v. The ITO, Indore

CO 7/IND/2010 | 2001-2002
Pronouncement Date: 06-07-2011 | Result: Dismissed

Appeal Details

RSA Number 722723 RSA 2010
Assessee PAN AFCPA4099L
Bench Indore
Appeal Number CO 7/IND/2010
Duration Of Justice 1 year(s) 22 day(s)
Appellant M/s Shivnarayan Nandram Garg Proip Late Madanlal Garg Through L/H Shri Radheshyam Agrawal, Indore
Respondent The ITO, Indore
Appeal Type Cross Objection
Pronouncement Date 06-07-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 06-07-2011
Assessment Year 2001-2002
Appeal Filed On 14-06-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO.290/IND/2010 AY: 2001-02 ITO WARD-4(2) INDORE ..APPELLANT V/S. M/S. SHIVNARAYAN NANDRAM GARG PROP. LATE MADANLAL GARG THROUGH L/H RADHESHYAM AGRAWAL INDORE PAN AFCPA 4099 L ..RESPONDENT AND CROSS-OBJECTION NO.7/IND/2010 ARISING OUT OF ITA NO.290/IND/2010 AY: 2001-02 M/S. SHIVNARAYAN NANDRAM GARG PROP. LATE MADANLAL GARG THROUGH L/H RADHESHYAM AGRAWAL INDORE PAN AFCPA 4099 L .. OBJECTOR VS. 2 ITO WARD-4(2) INDORE .. RESPONDENT DEPARTMENT BY SHRI ARUN DEWAN SR. DR RESPONDENT BY SHRI K.C. AGRAWAL CA ORDER PER JOGINDER SINGH THE ABOVE APPEAL FILED BY THE REVENUE AND CROSS- OBJECTION FILED ASSESSEE ARE AGAINST THE ORDER OF T HE LD. CIT(A)-II INDORE DATED 4.2.2010. IN THE APPEAL OF THE REVENUE THE ONLY GROUND RAISED IS THAT ON THE FACT S AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DELET ING THE ADDITION OF RS.6 25 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED ADVANCES. 2. DURING HEARING OF THIS APPEAL THE LD. COUNSEL F OR ASSESSEE CONTENDED THAT THE TAX EFFECT IN THE PRESE NT APPEAL IS BELOW THE PRESCRIBED LIMIT THEREFORE TH E APPEAL OF THE REVENUE DESERVES TO BE DISMISSED ON THIS COU NT 3 ITSELF BY FURTHER SUBMITTING THAT NO APPEAL CAN BE FILED BEFORE THE TRIBUNAL WHICH IS HAVING THE TAX EFFECT LESS THAN RS. 3 LACS. THIS FACTUAL MATRIX WAS FAIRLY CON SENTED BY THE LEARNED SR. DR BUT SUBMITTED THAT THE CIRCUL AR OF CBDT IS EFFECTIVE ONLY IN RESPECT OF APPEALS FILED AFTER 9.2.2011 THEREFORE THE SUBMISSION OF THE ASSESSEE S IS NOT TENABLE IN RESPECT OF THE APPEALS WHEREIN THE T AX EFFECT IS MORE THAN RS.2 LACS AND WHICH HAVE BEEN F ILED PRIOR TO 9.2.2011. IN REPLY THE LD. COUNSELS FOR RESPECTIVE ASSESSEE CONTENDED THAT IDENTICALLY THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT IT IS APPLICABLE TO THE APPEALS WHICH ARE PENDING BEFORE THE TRIBUNAL AND PLACED RELIANCE UPON THE DECISION IN C IT V. ASHOK KUMAR MANIBHAI PATEL & COMPANY (2009) 317 ITR 386 (MP) ITO VS. M/S LAXMI JEWELS PRIVATE LIMITED (ITA NO. 2165/MUM/2010). ITAT INDORE BENCH HAS ALSO FOLLOWED THE ABOVE DECISIONS IN CASE OF CASE OF ACI T VS. M.S. SIDDIQUI & OTHERS (ITA NO. 480/IND/2010) ORDER DATED 30.6.2011. THE TRIBUNAL IN THIS ORDER HAS 4 DELIBERATED UPON THE ISSUE OF TAX EFFECT IN DETAIL IN WHICH THE APPEAL OF THE REVENUE WAS DISMISSED BEIN G TAX EFFECT BELOW PRESCRIBED LIMIT. THE RELEVANT POR TION OF THE SAME IS REPRODUCED HEREUNDER: THE ABOVE APPEALS ARE FILED BY THE REVENUE AGAINST THE DIFFERENT ORDERS OF THE LD. CIT(A) FOR THE DIFFERENT ASSESSMENT YEARS AS MENTIONED ABOVE. 2. DURING HEARING OF THESE APPEALS THE LD. COUNSELS FOR RESPECTIVE ASSESSEES CONTENDED THAT THE TAX EFFECT IN THE PRESENT APPEALS IS BELOW THE PRESCRIBED LIMIT THEREFORE THE THESE APPEALS OF THE REVENUE DESERVES TO BE DISMISSED ON THIS COUNT ITSELF BY FURTHER SUBMITTING THAT NO APPEAL CAN BE FILED BEFORE THE TRIBUNAL WHICH IS HAVING THE TAX EFFECT LESS THAN RS. 3 LACS. THIS FACTUAL MATRIX WAS FAIRLY CONSENTED BY THE LEARNED SR. DR BUT SUBMITTED THAT THE CIRCULAR OF CBDT IS EFFECTIVE ONLY IN RESPECT OF APPEALS FILED AFTER 9.2.2011 THEREFORE THE SUBMISSION OF THE ASSESSEES IS NOT TENABLE IN RESPECT OF THE APPEALS WHEREIN THE TAX EFFECT IS MORE THAN RS.2 LACS AND WHICH HAVE BEEN FILED PRIOR TO 9.2.2011. IN REPLY THE LD. COUNSELS FOR RESPECTIVE ASSESSEE CONTENDED THAT IDENTICALLY THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT IT IS APPLICABLE TO THE APPEALS WHICH ARE PENDING BEFORE THE TRIBUNAL AND PLACED RELIANCE UPON THE DECISION IN CIT V. ASHOK KUMAR MANIBHAI PATEL & COMPANY (2009) 5 317 ITR 386 (MP) ITO VS. M/S LAXMI JEWELS PRIVATE LIMITED (ITA NO. 2165/MUM/2010). ITAT INDORE BENCH HAS ALSO FOLLOWED THE ABOVE DECISIONS IN CASE OF CASE OF ACIT VS. NATHULAL JAIN (ITA NO. 475/IND/2010) ORDER DATED 29.6.2011. THE TRIBUNAL IN THIS ORDER HAS DELIBERATED UPON THE ISSUE OF TAX EFFECT IN DETAIL IN WHICH THE APPEAL OF THE REVENUE WAS DISMISSED BEING TAX EFFECT BELOW PRESCRIBED LIMIT. THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER: AGGRIEVED BY THE ORDER DATED 3 RD MARCH 2010 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THE REVENUE IS IN APPEAL ON THE GROUND THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS. 7 85 000/- OUT OF TOTAL ADDITION OF RS. 8 85 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED LOAN CREDIT U/S 68 OF THE ACT WHEREAS THE ASSESSEE HAS FILED THE CROSS OBJECTION ON THE GROUND THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RESPECT OF THE ADDITION OF RS. 1 LAC MADE U/S 68 OF THE ACT WITHOUT CONSIDERING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HIM. 2. DURING HEARING OF THIS APPEAL THE LD. COUNSEL FOR ASSESSEE CONTENDED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE PRESCRIBED LIMIT THEREFORE THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED ON THIS COUNT ITSELF BY FURTHER SUBMITTING THAT THE TAX EFFECT IS RS. 2 52 450/- AND NO APPEAL CAN BE FILED BEFORE THE TRIBUNAL WHICH IS HAVING THE TAX EFFECT LESS THAN RS. 3 LACS. THIS FACTUAL MATRIX WAS FAIRLY 6 CONSENTED BY THE LEARNED SR. DR BUT SUBMITTED THAT THE CIRCULAR OF CBDT IS EFFECTIVE FROM A PARTICULAR DATE THEREFORE THE SUBMISSION OF THE ASSESSEE IS NOT TENABLE. IN REPLY THE LD. COUNSEL FOR ASSESSEE CONTENDED THAT IDENTICALLY THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT IT IS APPLICABLE TO THE APPEALS WHICH ARE PENDING BEFORE THE TRIBUNAL AND PLACED RELIANCE UPON THE DECISION IN CIT V. ASHOK KUMAR MANIBHAI PATEL & COMPANY (2009) 317 ITR 386 (MP) ITO VS. M/S LAXMI JEWELS PRIVATE LIMITED (ITA NO. 2165/MUM/2010). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON FILE. UNDISPUTEDLY THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE PRESCRIBED MONETARY LIMIT IN FILING THE APPEAL BEFORE THE TRIBUNAL. THEREFORE WE ARE REPRODUCING HEREUNDER THE DECISION OF THE TRIBUNAL IN THE CASE OF RAJAN CLOTH STORES (ITA NO. 365/IND/2010) ORDER DATED 31.5.2011 :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A)-I INDORE DATED 4.3.2010 ON THE GROUND THAT THE LD. CIT(A) ERRED IN OVERLOOKING THE PROVIS ION OF SEC. 275(1A) OF I.T. ACT AND DELETING PENALTY U/S 271(1)(C) FOR RS.2 32 780/-. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHRI PRADEEP KUAMR MITRA LD. SR. DR FOR THE REVENU E AND SHRI S.S. DESHPANDE LD. COUNSEL FOR THE ASSESS EE. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW PRESCRIBED MONETARY LIMIT THEREFORE STRAIGH T WAY THE APPEAL OF THE REVENUE MAY BE DISMISSED. TH E LD. SR. DR FAIRLY ADMITTED THAT THE TAX EFFECT IS B ELOW PRESCRIBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSIO N ON THE ISSUE OF TAX EFFECT THE BENCH IN THE CASE O F ACIT VS. M/S. SHRIRAM NUTRIENTS LTD. IN ITA NO.123/IND/2 010 7 (A.Y. 2002-03) VIDE ORDER DATED 28.10.2010 HELD A S UNDER: THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A)-UJJAIN DATED 16.12.2009 ON T HE GROUND WHETHER IN THE FACTS AND CIRCUMSTANCES OF TH E CASE LD. CIT(A) ERRED IN TREATING THE ASSESSMENT M ADE BY THE A.O. AS INFRUCTUOUS WITHOUT APPRECIATING TH E FACT THAT OTHERWISE ON 6.3.2006 (THE DATE OF ISSUE OF NO TICE) THE A.O. WAS EMPOWERED TO ISSUE NOTICE U/S 148 FOR THE A.Y. 2002-03 IN VIEW OF THE PROVISIONS OF SECTION 149(1)(A) READ WITH SECTION 151(1) OF THE IT ACT 1 961? 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHRI S.S. DESHPANDE LD. COUNSEL FOR THE ASSESSEE A ND SHRI P.K. MITRA LEARNED SENIOR DR. THE CRUX OF ARGUMENT IS THAT THE TAX EFFECT IN THE PRESENT APPE AL IS BELOW MONETARY PRESCRIBED LIMIT THEREFORE STRAIGH T WAY THE APPEAL OF THE REVENUE MAY BE DISMISSED. THE LD. SR. DR SHRI P.K. MITRA FAIRLY ADMITTED THAT THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IN THE PRESENT APPEAL THE INC OME ASSESSED IS RS.1 37 880/- AND THE TAX INVOLVED IS RS.40 611/- ONLY THEREFORE WITHOUT GOING INTO MER ITS OF THE CASE ON THE PRIMARY OBJECTION OF MONETARY LIMIT THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OUR VIEW IS SUPPORTED BY THE DECISION OF THE TRIBUNAL I N HIMANSHU FLOUR MILLS (ITA NO.506/IND/2009 ORDER DATED 26.5.2010). THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER: THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 26.8.2009 ON THE GROUND THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN DELETING THE ADDITIO N OF RS. 5 46 831/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON FIXED A SSETS AND ALSO IN DIRECTING THE ASSESSING OFFICER TO ALLO W CARRY FORWARD OF BROUGHT FORWARD LOSSES OF EARLIER YEARS. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD THE LEARNED COUNSELS FROM BOTH THE SIDES AND CONSIDERED THE ARGUMENTS ADVANCED BY THEM. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE RAISED A PRELIMINARY OBJEC TION THAT SINCE THE TAX EFFECT IS BELOW THE PRESCRIBED MONETARY LIMIT THEREFORE THE DEPARTMENT IS NOT PERMITTED TO FILE THIS APPEAL AND THE SAME DESERVES TO BE DISMISSED ON THIS SHORT GROUND ITSELF. HOWEVER THE 8 LEARNED SR. DR FAIRLY AGREED THAT THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE ASSERTI ON OF THE LEARNED RESPECTIVE COUNSELS WE ARE OF THE CONSIDERED OPINION THAT THIS APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OUR VIEW FINDS SUPPORT FR OM THE DECISION DATED 2 ND DECEMBER 2009 OF THE TRIBUNAL IN THE CASE OF HIMANSHU FLOOR MILLS (ITA NO. 507/IND/2009). THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER :- THIS APPEAL IS BY THE REVENUE CHALLENGING THE ORD ER OF THE CIT(A) DATED 26.8.2009. DURING HEARING OF T HIS APPEAL I HAVE HEARD SMT. APARNA KARAN LEARNED SENIOR DR AND NO- BODY WAS PRESENT FOR THE ASSESSEE. REGISTERED NOTI CE OF HEARING WAS SENT TO THE ASSESSEE ON 11.11.2009. TH E ASSESSEE NEITHER PRESENTED ITSELF NOR MOVED ANY APP LICATION FOR ADJOURNMENT THEREFORE I HAVE NO OPTION BUT TO PROCEED EX-PARTE QUA THE ASSESSEE AND DISPOSE OF THIS APPEA L ON THE BASIS OF MATERIAL AVAILABLE IN THE FILE. 2. THE FIRST GROUND RAISED IS THAT THE LEARNED FIRS T APPELLATE AUTHORITY ERRED IN DELETING THE ADDITION OF RS.4 26 936/- MADE ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON THE FIXED ASSETS. ON QUESTIONING F ROM THE BENCH ABOUT THE TAX EFFECT IT WAS FAIRLY POINTED O UT THAT THE TAX EFFECT IS BELOW THE PRESCRIBED MONETARY LIMIT. I HAVE CONSIDERED THE SUBMISSIONS PUT-FORTH BY THE LEARNED SENIOR DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 3. BRIEF FACTS ARE THAT THE ASSESSEE CLAIMED DEPREC IATION OF RS. 8 53 871/- ON THE FIXED ASSETS. THE LEARNED ASSESSING OFFICER BASED UPON THE COMMENTS OF THE AUDITORS IN THE NOTES TO ACCOUNTS AND THE NATURE OF THE BUSINESS D ISALLOWED 50% OF THE DEPRECIATION CLAIMED BY THE ASSESSEE WHI CH WAS WORKED OUT AT RS.4 26 936/-. BEFORE THE LEARNED FI RST APPELLATE AUTHORITY THE SUBMISSION OF THE ASSESSEE WAS THAT THE FIXED ASSETS WERE DULY REFLECTED IN THE BALANCE SHEET DURING THE RELEVANT PERIOD AND THERE WAS NO NEW ADD ITION IN THE ASSETS. THE DEPRECIATION ON ALL THE ASSETS WAS REGULARLY ALLOWED SINCE THE DATE OF INCLUSION IN THE BALANCE SHEET. EVEN IN THE IMPUGNED ORDER THERE IS A FACTUAL FINDI NG THAT THE ASSESSEE FROM THE DATE OF INCLUSION HAS NOT SHOWN I N ADDITION TO THE BLOCK OF ASSETS AS THE WDV AS ON 31 .3.2002 WAS TAKEN AS BASIS AFTER REDUCING THE SALE OF SOME ASSETS FOR THE CALCULATION OF ALLOWABLE DEPRECIATION FOR THE A SSESSMENT 9 YEAR 2003-04 AND THE ASSESSEE WAS ALLOWED DEPRECIAT ION FOR THE ASSESSMENT YEAR 2002-03. THE REVENUE HAS NOT A DDUCED ANY EVIDENCE CONTROVERTING THE FACTUAL FINDING MENT IONED IN THE IMPUGNED ORDER THEREFORE THE DISALLOWANCE IS DESIRABLE IN THE IMPUGNED APPEAL. EVEN OTHERWISE ON THE TAX EFFECT THIS APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSE D. THIS VIEW FINDS SUPPORT FROM THE DECISION OF THE TRIBUNAL IN THE CASE OF R.K. HOTELS (ITA NO.383/IND/09). THE RELEVANT PORTI ON OF THE ORDER IS REPRODUCED HEREUNDER :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF LD. CIT-(A)-II BHOPAL DATED 31.3.2009 FOR THE AY 2005-06 ON THE GROUND THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN DELETING THE ADDITION OF 6 37 20 6/- MADE BY THE AO BY APPLYING THE PROVISIONS OF SEC. 154(3) ON ACCOUNT OF INCORRECTNESS AND INCOMPLETENE SS OF BOOKS OF ACCOUNT.. 2. DURING HEARING OF THE APPEAL WE HAVE HEARD SMT. APARNA KARAN LD. SR. DR AND SHRI H.P. VERMA ALONG WITH SHRI ASHISH GOYAL LD. COUNSEL FOR ASSES SEE. AT THE OUTSET IT WAS POINTED OUT THAT THERE IS TYPOGRAPHICAL ERROR IN MENTIONING THE FIGURE OF RS.6 37 206/- IN THE GROUND OF APPEAL AS THE CORRE CT FIGURE IS RS.3 94 732/-. THE ASSERTION OF THE ASSES SEE WAS CONSENTED TO BE CORRECT BY THE LD. SR. DR. FURT HER IT WAS POINTED OUT THAT THE TAX EFFECT IS ALSO BELO W MONETARY LIMIT THEREFORE THE APPEAL OF THE REVENU E MAY BE DISMISSED. THE LD. SR. DR FAIRLY AGREED TO T HE SUBMISSION OF THE ASSESSEE TO THE EXTENT THAT THE T AX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT FOR FILIN G THE APPEAL BEFORE THE TRIBUNAL. S.NO. AUTHORITY MONETARY LIMIT (IN RS.) 1 ITAT 2 00 000/- 2 APPEAL UNDER SECTION 260A BEFORE HIGH COURT 4 00 000/- 3 SUPREME COURT 10 00 000/- THE BOARD FURTHER CLARIFIED THE TAX EFFECT WHICH M EANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME 10 ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABL E HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS INTENDED TO BE FILED. HOWEVER THE TAX WILL NOT I NCLUDE ANY INTEREST THEREON. IN CASES OF PENALTY ORDERS THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. IN T HE PRESENT APPEAL THE TOTAL DISPUTED ADDITION IS RS.3 94 732/- THEREFORE AS AGREED/CANVASSED BY LD . REPRESENTATIVES FROM BOTH SIDES THE TAX EFFECT IS BELOW RS.2 LAKHS THE LIMIT PRESCRIBED FOR FILING APPEAL BEFORE THE TRIBUNAL THEREFORE APPEAL OF THE REVENUE DESE RVES TO BE DISMISSED. OUR VIEW FINDS SUPPORT FROM THE DECISION OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASES OF SHRI J.S. LUTHRA (ITA NO.712 TO 715/CHD/20 09) AND ITO WARD 2(2) ROPAR VS. THE JHALLIAN KALAN PR I. COOP MILK PRODUCE SOCIETY LTD. JHALLIAN KALAN DIST T. ROPAR (ITA NO.721/CHD/2009). THEREFORE WITHOUT GOING INTO THE MERITS OF THE CASE FACTS AND THE JU DICIAL PRONOUNCEMENTS (SUPRA) THIS APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES ON 6.10.2009. IN THE LIGHT OF THE ABOVE THIS GROUND OF THE REVEN UE IS HAVING NO MERIT THEREFORE THE STAND OF THE LEARNED CIT(A ) IS AFFIRMED CONSEQENTLY THIS GROUND OF THE REVENUE IS DISMISSED. 4. THE NEXT GROUND RAISED IS THAT THE LEARNED FIRST APPELLATE AUTHORITY ERRED IN DIRECTING THE ASSESSIN G OFFICER TO ALLOW CARRY FORWARD OF BROUGHT FORWARD LOSSES OF EA RLIER YEARS WITHOUT ANY BASIS. THE CONTENTION RAISED ON BEHALF OF THE REVENUE IS THAT IN COMING TO A PARTICULAR CONCL USION NO BASIS HAS BEEN ADDUCED BY THE LEARNED FIRST APPELLA TE AUTHORITY AND IT WAS RIGHTLY DISALLOWED BY THE ASSE SSING OFFICER IN THE ABSENCE OF PROOF FURNISHED BY THE AS SESSEE. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. THE STAND OF THE REVENUE IS THAT PROOF OF LAST YEARS LOSSES WAS NOT FURNISHED BY THE ASSESSEE CONSEQUENTLY THESE ARE NOT ALLOWABLE WHERE AS BEFORE THE LEARNED FIRST APPELLATE AUTHORITY THERE IS A FACTUAL FINDING THAT IN ALL PREVIOUS YEARS RETURNS WERE DU LY FILED BY THE ASSESSEE AND THE SAME WERE AVAILABLE ON RECORD OF THE ASSESSING OFFICER. IN THE IMPUGNED ORDER THE LEARNE D FIRST APPELLATE AUTHORITY HAS DIRECTED THE ASSESSING OFFI CER TO 11 ALLOW CARRY FORWARD OF BROUGHT FORWARD LOSSES OF EA RLIER YEARS WHICH WERE NOT SET OFF AFTER VERIFICATION OF RECORDS OF EARLIER YEARS. EVEN OTHERWISE IT IS A CASE OF ASS ESSED LOSS WHICH HAS NOT BEEN SET OFF. CONSEQUENTLY WE ARE I N AGREEMENT THAT IN VIEW OF THE PROVISIONS OF SECTION 72 IT SHOULD BE ALLOWED. CONSEQUENTLY THERE IS NO GRIEV ANCE TO THE REVENUE SINCE IT HAS BEEN REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO DO THE NEEDFUL AFTER VERIF ICATION OF RECORDS OF EARLIER YEARS. MY VIEW FINDS SUPPORT FR OM THE RATIO LAID DOWN IN CIT V. J.H. GOTLA; 156 ITR 323 (SC); TARA DEVI BEHL V. CIT; 218 ITR 541 (P&H). THE HONBLE APEX COURT IN THE CASE OF CIT V. MAHALAXMI SUGAR MILLS CO. LTD .; 160 ITR 920 EVEN WENT TO THE EXTENT THAT ITO MUST ALLOW SET OFF EVEN IF IT IS NOT CLAIMED BY THE ASSESSEE BECAUSE A DUTY IS CAST UPON THE ITO TO APPLY THE RELEVANT PROVISIONS OF TH E INDIAN INCOMETAX ACT FOR THE PURPOSE OF DETERMINING THE TR UE FIGURE OF ASSESSEES TAXABLE INCOME AND THE CONSEQUENTIAL TAX LIABILITY. MERELY BECAUSE THE ASSESSEE FAILS TO CLA IM THE BENEFIT OF SET OFF CANNOT RELIEVE THE ITO OF HIS DU TY TO APPLY SECTION 72 IN AN APPROPRIATE CASE. IN VIEW OF THES E FACTS AND JUDICIAL PRONOUNCEMENTS I HAVE FOUND NO INFIRMITY IN THE IMPUGNED ORDER CONSEQUENTLY THIS GROUND OF THE RE VENUE ALSO FAILS. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF HEARING ON 1. 12.2009. IN THE AFORESAID CASE THE TRIBUNAL HAS PASSED A DE TAILED ORDER THEREFORE WITHOUT GOING INTO THE MERITS OF THE CAS E AND RESPECTFULLY FOLLOWING THE AFORESAID DECISION THIS APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CO NCLUSION OF HEARING ON 26 TH MAY 2010. IN VIEW OF THE ABOVE THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 28.10.2010. 4. HOWEVER THE CBDT VIDE INSTRUCTION NO.3/2011 DAT ED 9.2.2011 REVISED/RAISED THE MONETARY LIMIT FOR FILI NG THE APPEAL BY THE DEPARTMENT AS UNDER: 12 S.NO. AUTHORITY MONETARY LIMIT (IN RS.) 1 ITAT 3 00 000/- 2 APPEAL UNDER SECTION 260A BEFORE HIGH COURT 10 00 000/- 3 SUPREME COURT 25 00 000/- THE ABOVE INSTRUCTIONS ARE APPLICABLE TO THE APPEAL S FILED ON OR AFTER 9.2.2011 ISSUED U/S 268A(1) OF T HE I.T. ACT 1961. AS FAR AS THE MERIT OF THE CASE IS CONCE RNED IT HAS ALREADY BEEN EXAMINED BY THE LD. CIT(A) BY KEEPING THE PROVISIONS OF SEC. 275(1)(A) OF THE ACT . SINCE THE APPEAL OF THE ASSESSEE WAS DECIDED BY THE LD. CIT(A) VIDE ORDER DATED 4.11.2004 CONSEQUENTLY THE PENALTY PROCEEDINGS WERE SUPPOSED TO BE DISPOSE D OF BY 31.3.2006 WHEREAS THE SAME WAS DECIDED VIDE ORDER DATED 22.4.2009. IN VIEW OF THIS FACT THE OR DER WAS RIGHTLY QUASHED CONSEQUENTLY WE FIND NO INFIR MITY IN THE STAND OF THE LD. CIT(A). THE SAME IS UPHELD. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES A T THE CONCLUSION OF THE HEARING ON 31.5.2011. IDENTICALLY THE BENCH IN THE CASE OF VINOD BANSAL ITA NO. 275/IND/2010 VIDE ORDER DATED 22.6.2011 DISMISSED THE APPEAL OF THE REVENUE ON THE ISSUE OF TAX EFFECT. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. ASHOK KUMAR MANIBHAI & COMPANY (2009) 317 ITR 386 HELD AS UNDER :- THIS COURT CAN VERY WELL TAKE JUDICIAL NOTICE OF THE FACT THAT BY PASSAGE OF TIME MONEY VALUE HAS GONE DOWN THE COST OF LITIGATION EXPENSES HAS GONE UP THE ASSESSEE ON THE FILE OF THE DEPARTMENT HAVE BEEN INCREASED CONSEQUENTLY THE BURDEN ON THE DEPARTMENT HAS ALSO INCREASED TO A TREMENDOUS EXTENT. THE CORRIDORS OF THE SUPERIOR COURTS ARE CHOKED WITH HUGE PENDENCY OF CASES. IN THIS VIEW OF THE MATTER THE BOARD HAS RIGHTLY TAKE N A DECISION NOT TO FILE REFERENCES IF THE TAX EFFECT LESS 13 THAN RS. 2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN OUR VIEW THE BOARDS CIRCULAR DATED MARCH 27 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED. THE DEPARTMENT IS NOT JUSTIFIED IN PROCEEDING WITH THE OLD REFERENCE WHEREIN THE TAX IMPACT IS MINIMAL. THUS THERE IS NO JUSTIFICATION TO PROCEED WITH DECADES OLD REFERENCES HAVING NEGLIGIBLE TAX EFFECT. 4. VIDE BOARD INSTRUCTION NO. 5/2008 DATED 15.5.2008 THE MONETARY LIMIT AND OTHER CONDITIONS FOR FILING THE APPEAL OF THE DEPARTMENT (IN INCOME TAX MATTERS) BEFORE THE APPELLATE TRIBUNAL HIGH COURT AND SUPREME COURT WAS SPECIFIED. HOWEVER IN SUPPRESSION OF THESE INSTRUCTIONS VIDE INSTRUCTION NO. 3/2011 DATED 9.2.2011 THE BOARD INCREASED THE MONETARY LIMIT AS DISCUSSED ABOVE (TABLE). THE TRIBUNAL (MUMBAI BENCH) IN THE CASE OF M/S LAXMI J. JEWEL PRIVATE LIMITED (ITA NO. 2165/MUM/2010) BY FOLLOWING THE DECISION IN THE CASE OF HONBLE BOMBAY HIGH COURT IN CIT V. MADHUKAR K. INAMDAR (HUF) WHEREIN IT WAS HELD THAT THE CIRCULAR WILL BE APPLICABLE TO THE CASES PENDING BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL AND HELD THAT INSTRUCTION NO. 3 DATED 9.2.2011 IS APPLICABLE FOR THE APPEAL PREFERRED BY THE REVENUE AND DISMISSED THE SAME ON TAX EFFECT BY FURTHER CONSIDERING THE DECISION IN THE CASE OF LIVING STONES JEWELLERY PRIVATE LIMITED VS. DCIT; 31 SOT 323. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS WE DISMISS THE APPEAL OF THE REVENUE ON THE ISSUE OF TAX EFFECT/MONETARY LIMIT. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT 14 THE CONCLUSION OF THE HEARING ON 30 TH JUNE 2011 . WE FIND FROM THE RECORD THAT ITA NO.87/IND/2011 88/IND/2011 617/IND/2010 104/IND/2011 524/IND/2010 598/IND/2010 599/IND/2010 620/IND/2010 556/IND/2010 & IT(SS)A NO.26/IND/2011 ARE HAVING TAX EFFECT BELOW RS.2 LACS AND REMAINING THREE APPEALS I.E. ITA NO.480/IND/2010 102/IND/2011 & 571/IND/2010 ARE HAVING TAX EFFECT MORE THAN RS.2 LACS BUT BELOW RS.3 LACS. SO FAR AS THE APPEALS HAVING TAX EFFECT BELOW RS.2 LACS ARE CONCERNED SAME ARE DISMISSED BEING NOT MAINTAINABLE AS PER EARLIER CIRCULAR NO.5/2008 DATED 15.5.2008 OF CBDT WHEREAS WITH REGARD TO THREE APPEALS HAVING TAX EFFECT MORE THAN RS.2 LACS BUT LESS THAN RS.3 LACS ARE CONCERNED WE FIND THAT THESE APPEALS ARE ALSO LIABLE TO BE DISMISSED BEING NOT MAINTAINABLE BY FOLLOWING THE DECISION OF MUMBAI BENCH IN THE CASE OF LAXMI JEWELS P. LTD. ORDER DATED 12.4.2011 ITA NO.2165/MUM/2010. THIS ORDER OF THE MUMBAI BENCH HAS BEEN SUBSEQUENTLY FOLLOWED IN THE CASE OF M/S. INDIA SAFETY VAULTS LTD. ORDER DATED 29.4.2011 IN ITA NO.648 TO 651/MUM/2010. WE HAVE CAREFULLY GONE THROUGH THE DECISION OF THE COORDINATE BENCH WHEREIN AFTER FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF MADHUKAR K. INAMDAR HUF IT WAS HELD THAT CIRCULAR WILL BE APPLICABLE TO THE CASE PENDING BEFORE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL. IN THE CASE OF NATHULAL JAIN (SUPRA) THE TRIBUNAL HAS PASSED A DETAILED ORDER THEREFORE WITHOUT GOING INTO THE MERITS OF THE RESPECTIVE CASES AND RESPECTFULLY FOLLOWING THE AFORESAID DECISION ALL THE PRESENT APPEALS OF 15 THE REVENUE ARE DISMISSED BEING TAX EFFECT BELOW PRESCRIBED LIMIT. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 30.6.2011. IN THE PRESENT APPEAL SINCE THE TOTAL ADDITION CHA LLENGED BY THE REVENUE IS RS.6 25 000/- THEREFORE THE TAX EFFECT WAS ARGUED TO BE BELOW PRESCRIBED LIMIT AND NOT CONTROVERTED BY THE REVENUE CONSEQUENTLY RESPECTF ULLY FOLLOWING THE AFORESAID DECISION OF TRIBUNAL WHEREI N VARIOUS JUDICIAL DECISIONS HAVE BEEN DELIBERATED UP ON THE APPEAL OF THE REVENUE IS DISMISSED AS NON- MAINTAINABLE. AS FAR AS THE CROSS-OBJECTION NO.7/IND/2010 (ARISING OUT OF ITA NO.290/IND/2010) IS CONCERNED THE SAME WAS NOT PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE CONSEQUENTLY IT IS DISMISSED AS NOT PRES SED. FINALLY THE APPEAL OF THE REVENUE AS WELL AS THE CROSS-OBJECTION OF THE ASSESSEE ARE DISMISSED. 16 ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUS ION OF THE HEARING ON 6.7.2011. (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6.7.2011 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE !VYS!