ITO, Ward 1(3), Durgapur v. M/s. SENCO, Durgapur

ITA 1541/KOL/2008 | 2005-2006
Pronouncement Date: 14-03-2011

Appeal Details

RSA Number 154123514 RSA 2008
Assessee PAN AALFS9262K
Bench Kolkata
Appeal Number ITA 1541/KOL/2008
Duration Of Justice 2 year(s) 7 month(s) 3 day(s)
Appellant ITO, Ward 1(3), Durgapur
Respondent M/s. SENCO, Durgapur
Appeal Type Income Tax Appeal
Pronouncement Date 14-03-2011
Appeal Filed By Department
Bench Allotted A
Tribunal Order Date 14-03-2011
Date Of Final Hearing 14-03-2011
Next Hearing Date 14-03-2011
Assessment Year 2005-2006
Appeal Filed On 11-08-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BEN CH A KOLKATA () BEFORE . .. . . .. . SHRI B.R.MITTAL JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . #$ SHRI C.D.RAO ACCOUNTANT MEMBER % % % % / ITA NO . 1541/KOL/2008 &' ()/ ASSESSMENT YEAR : 2005-06 (+ / APPELLANT ) I.T.O. WARD-1(3) DURGAPUR - & - - VERSUS - . (./+ / RESPONDENT ) M/S. SENCO. . DURGAPUR (PAN: AALFS 9262 K) + 0 1 #/ FOR THE APPELLANT: SHRI P.C.NAYAK ./+ 0 1 #/ FOR THE RESPONDENT: SHRI UDAYAN DASGUPTA #2 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ) #$ PER SHRI C.D.RAO AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 26.05.2008 OF THE CIT(A)-DURGAPUR PERTAINING TO A.YR. 2005-06. 2. IN THIS APPEAL THE REVENUE HAS TAKEN THE FOL LOWING GROUNDS OF APPEAL :- 1. THAT THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN DELETING THE ADDITION OF RS.6 51 135/- COMPLETELY IGNORING THE F ACT THAT THE ASSESSEE HAD ALL ALONG FAILED TO DISCHARGE HIS ONUS OF PRODUCING PUR CHASE BILLS. 2. THAT THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN HOLDING THAT THE ONUS LIES WITH THE REVENUE TO VERIFY ALL THE PURCHA SES EXHAUSTIVELY EVEN WHEN THE ASSESSEE DIDNT PROVIDE ADDRESSES OF MOST OF TH OSE PARTIES DESPITE OF SPECIFICALLY REQUISITIONED FOR. 3. THAT THE LD. CIT(A) HAS ERRED ON FACTS IN ACCEPT ING THE UNVERIFIABLE PURCHASES ALLEGEDLY MADE ON 31.03.2005 JUST RELYIN G ON THE SAME DAYS SALE FIGURE AND COMPLETELY IGNORING THE REPLIES FROM THE PARTIES FROM WHOM PURCHASES WERE ALLEGEDLY CLAIMED TO BE MADE. 4. THAT THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN HOLDING THAT SEC.69A OF THE I.T.ACT 1961 COULD HAVE BEEN INVOLV ED. 2 3. IN THIS CASE THE REVENUE IS IN APPEAL DISPUTING THE DELETION OF RS.6 51 135/- MADE BY THE AO ON ACCOUNT OF PURCHASES OF WANT OF B ILLS. 4. AT THE TIME OF HEARING THE LD. COUNSEL APPEARIN G ON BEHALF OF THE ASSESSEE AT THE OUTSET SUBMITTED THAT IN THIS CASE THE TAX EFFECT I NVOLVED IS RS.2 38 269/- AND SINCE THE TAX IS LESS THAN RS. 3 LAKHS AS PER CBDT INSTRUCTIO N NO.3/2011(F.NO.279/MISE/142/2007-ITJ) DATED 9.2.201 1 WHEREIN IT HAS BEEN ENHANCED THE LIMITS FOR FILING OF APPEALS BEFORE TH E TRIBUNAL TO RS.3 LAKHS THE REVENUES APPEAL IS LIABLE TO BE DISMISSED IN LIMIN E. IN VIEW OF THE LATEST ORDER OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DELH I RACE CLUB IN ITA NO.128/2008 WHEREIN THE HONBLE HIGH COURT OPINED THAT THAT THE CIRCULAR WOULD ALSO APPLY TO THE PENDING CASES. THEREFORE HE REQUESTED TO DISMISS TH E REVENUE. THE COPY OF THE HONBLE DELHI HIGH COURT IS PLACED ON RECORD. 5. ON THE OTHER HAND THE LD. DR APPEARING ON BEHAL F OF THE REVENUE CONTENDED THAT IN THIS SAID CIRCULAR IT WAS SPECIFICALLY MENT IONED AT PARA 11 THAT THE CIRCULAR IS EFFECTIVE FOR THE APPEALS FILED SUBSEQUENT TO THE S PECIFIC DATE IN THE CIRCULAR. SINCE THIS APPEAL HAS BEEN FILED PRIOR TO THE ISSUE OF CIRCULA R THE MONETARY LIMIT SPECIFIED IN THE CIRCULAR IS NOT APPLICABLE TO THE PRESENT APPEAL. T HEREFORE HE REQUESTED TO DISPOSE OF ON MERIT. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIAL ON RECORD KEEPING IN VIEW OF THE FACT THAT THE LD. DR COULD N OT GIVE CONTRARY JUDGEMENT TO THE ONE ON WHICH THE LD. COUNSEL FOR THE ASSESSE HAS RE LIED WHEREIN THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS DELHI RACE CLUB IN ITA NO.128/2008 DATED 03.03.2011 HAS HELD AS UNDER :- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S.4 65 860/-. AS PER RECENT GUIDELINES OF THE CBDT APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS ARE NOT BE ENTERTAINED. THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TA X-III V. M/S. P.S.JAIN AND CO. BEING NO.179/1991 DECIDED ON 2 ND AUGUST 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 6.1. ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROUN DS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS.3 LAKHS AND AS PER REVISED INSTRUCT ION OF THE CBDT NO. 3 DATED 3 9.2.2011 WHEREIN THE CBDT HAS REVISED THE FILING LI MITS FILED BEFORE THE TRIBUNAL HIGH COURT AND SUPREME COURT AS UNDER :- BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS. 3 L AKHS APPEALS U/S 260A OF THE IT ACT BEFORE THE HONBLE HIGH COURT : RS.10 LAKHS AND BEFORE THE HONBLE SUPREME COURT : RS.25 LAKHS SINCE IN THE PRESENT CASE THE ABOVE REVISED INSTRUC TION IS WELL APPLICABLE IN VIEW OF THE HONBLE DELHI HIGH COURT (SUPRA) HENCE IN OUR OPINI ON THE REVENUES APPEAL IS NOT MAINTAINABLE IN VIEW OF THE SAID CIRCULAR OF THE CB DT. 6.2. WE FURTHER FIND THAT IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS INDIAN OIL CORPORATIO N LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISI ONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THA T WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUN D BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY T O THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRA RY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9.2.2011. 6.3. IN VIEW OF THE ABOVE WE HOLD THAT THE APPEAL FILED BY THE DEPARTMENT AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A) IS CONTRARY T O THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE . 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON _14.03.2011 SD/- SD/- . .. . . .. . B.R.MITTAL JUDICIAL MEMBER . .. .!' !'!' !'. .. . #$ #$ #$ #$ C.D.RAO ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 14.03.2011 R.G.(.P.S.) 4 #2 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. M/S. SENCO JADABENDRA PANJA AVENUE DURGAPUR-71321 1. 2 THE I.T.O. WARD-1(3) DURGAPUR. 3. THE CIT 4. THE CIT(A)-DURGAPUR. 5. DR KOLKATA BENCHES KOLKATA /3 ./ TRUE COPY #2&:/ BY ORDER DEPUTY /ASST. REGISTRAR ITAT KOLKATA BENCHES