ITO, Ward - 6(3), Kolkata, Kolkata v. M/s. Orient International Ltd., Kolkata

ITA 1941/KOL/2010 | 2003-2004
Pronouncement Date: 24-03-2011 | Result: Dismissed

Appeal Details

RSA Number 194123514 RSA 2010
Assessee PAN AAACO2857L
Bench Kolkata
Appeal Number ITA 1941/KOL/2010
Duration Of Justice 5 month(s) 10 day(s)
Appellant ITO, Ward - 6(3), Kolkata, Kolkata
Respondent M/s. Orient International Ltd., Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 24-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 24-03-2011
Assessment Year 2003-2004
Appeal Filed On 14-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH-B: KO LKATA ( ) . . . . ) [BEFORE HONBLE SHRI B.R. MITTAL J.M. & HONBLE SH RI B.K. HALDAR A.M] /I.T.A. NOS. 1940 & 1941/KOL./2010 !' !' !' !' #$ #$ #$ #$ /ASSESSMENT YEARS : 2002-2003 & 2003-2004 INCOME TAX OFFICER WARD-6(3) KOLKATA -VS.- M/S. ORIENT INTERNATIONAL LTD. KOLKATA (PAN : AAACO 2857 L) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PIYUSH KOLHE D.R. RESPONDENT BY : N O N E % % % % /O R D E R PER BENCH : THE DEPARTMENT HAS FILED THESE TWO APPEALS FOR THE ASSESSMENT YEARS 2002-03 & 2003- 04 AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME- TAX (APPEALS)-IV KOLKATA BOTH DATED 24.03.2010 DISPUTING THE DELETION OF ADDITIONS OF R S.5 23 141/- AND RS.3 60 725/- UNDER THE HEAD COMMISSION PAYMENT RESPECTIVELY. 2. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE WHEN THE CASES WERE CALLED FOR HEARING INSPITE OF ISSUING NOTICE. 3. BE THAT AS IT MAY IT IS OBSERVED THAT THE TAX E FFECT IN EACH OF THE APPEAL IS LESS THAN RS.2 LAKHS. HENCE THE LD. D.R. WAS ASKED AS TO WHETHER ANY OF THE EXCEPTIONS LAID DOWN IN PARA 8 OF CBDT CIRCULAR NO. 279/MISC.-64/05-ITJ DATED 24.10.0 5 READ WITH INSTRUCTION NO.5 OF 2008 DATED 15.05.2008 ARE APPLICABLE TO CONSIDER THESE A PPEALS ON MERITS. THE DEPARTMENT IN ABOVE INSTRUCTION DATED 15.05.2008 HAS SPECIFIED 3 GROUND S IN PARA 8 STATING THAT THE APPEAL COULD BE FILED BEFORE THE TRIBUNAL WHERE THE TAX EFFECT IS L ESS THAN RS.2.00 LAKHS ONLY AND THE SAME ARE AS UNDER :- ITA NOS.1940 & 1941-KOL.-2010 2 (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF AN ACT OR RULE ARE UNDER CHALLENGE. (B) WHERE BOARDS ORDER NOTIFICATION INSTRUCTION OF CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES. (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS B EEN ACCEPTED BY THE DEPARTMENT. 4. LD. D.R. FAIRLY CONCEDED THAT NONE OF THE ABOVE CONDITIONS ARE APPLICABLE IN RESPECT OF THESE APPEALS. 5. THERE IS NO DISPUTE ON THE FACT THAT THE CBDT VI DE INSTRUCTION NO. 2/2005 DATED 24.10.2005 ISSUES GUIDELINES TO THE REVENUE AUTHOR ITIES WITH REGARD TO FILING OF APPEALS BEFORE THE TRIBUNAL HIGH COURT AND THE SUPREME COURT. FRO M THE SAID INSTRUCTIONS IT IS EVIDENT THAT SINCE 1987 THE CBDT HAS BEEN INSTRUCTING ITS OFFIC ERS NOT TO FILE THE APPEAL WHERE THE TAX EFFECT IS BELOW CERTAIN MONETARY LIMITS. VIDE INSTRUCTION NO. 1903 DATED 28.10.1992 THE MONETARY LIMITS WAS REVISED UPWARD AND THE OFFICERS WERE DIR ECTED NOT TO FILE APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL WHERE THE TAX EFFECT WAS BEL OW RS.25 000/-. THE ABOVE MONETARY LIMIT WAS FURTHER REVISED UPWARD BY INSTRUCTION NO.1979 D ATED 27.3.2000 AND THE OFFICERS WERE DIRECTED NOT TO FILE THE APPEAL TO ITAT WHERE THE T AX EFFECT IS BELOW RS. 1 00 000/-. THEREAFTER IN PARTIAL MODIFICATION OF THE ABOVE INSTRUCTION T HE BOARD VIDE INSTRUCTION NO.2/2005 DATED 24.10.2005 HAS FURTHER RAISED THE ABOVE MONETARY LI MIT TO RS.2 00 000/- WITH THE SAME DIRECTIONS. THUS THE C.B.D.T SINCE 1987 HAS NOT ONL Y TAKEN A CONSISTENT APPROACH OF INSTRUCTING ITS OFFICERS FOR NOT FILING THE APPEAL WHERE THE TA X EFFECT IS BELOW THE MONETARY LIMIT BUT SUCH MONETARY LIMIT IS ALSO REVISED UPWARD FROM TIME TO TIME. THE CIRCULAR UNDER INSTRUCTION NO.1979 DATED 27-3-2000 WAS CONSIDERED BY THE BOMBA Y HIGH COURT IN THE CASE OF CAMCO COLOUR CO. 254 ITR 565 AND THEIR LORDSHIPS HELD AT PAGE 568 AS UNDER :- IT APPEARS THAT DESPITE THE ABOVE CIRCULAR THE RE VENUE HAS CHOSEN TO FILE THE PRESENT APPEAL KNOWINGLY FULLY WELL THAT THE CO RRIDORS OF THE COURTS ARE FLOODED WITH PENDING LITIGATIONS. THE PRESENTATION OF THIS APPEAL IS QUITE CONTRARY TO THE INSTRUCTION ISSUED IN THE CIRCULAR WHICH IS BINDING ON THE REVENUE. IN THE ABOVE VIEW OF THE MATTER CONSIDERING THE IN STRUCTIONS ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES WE ARE SATISFIED THA T THE BOARD HAS TAKEN A POLICY DECISION NOT TO FILE APPEAL IN A TYPE OF CAS E IN HAND AND THE SAME IS ITA NOS.1940 & 1941-KOL.-2010 3 BINDING ON THE REVENUE (APPELLANT HEREIN). IN THE R ESULT WE DISMISS THIS APPEAL ON THIS COUNT IN LIMINE WITH NO ORDER AS TO COSTS. 6. WE FIND THAT RECENTLY THE APEX COURT HAS CONSID ERED THE EFFECT OF CIRCULAR ISSUED BY THE CBDT IN THE CASE OF COMMISSIONER OF CUSTOMS VS. IND IAN OIL CORPORATION LTD. 267 ITR 272. THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF T HE APEX COURT WITH REGARD TO BINDING OF THE CIRCULAR AND LAID DOWN THE FOLLOWING PRINCIPLES AT PAGE 277 OF THE REPORTS- THE PRINCIPALS LAID DOWN BY ALL THESE DECISIONS AR E- 1) ALTHOUGH A CIRCULAR IS NOT BINDING ON A COURT ON AN ASSESSEE IT IS NOT OPEN TO THE REVENUE TO RAISE A CONTENTION THAT IS C ONTRARY TO A BINDING CIRCULAR BY THE BOARD. WHEN A CIRCULAR REMAINS IN O PERATION THE REVENUE IS BOUND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID NOR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. 2) DESPITE THE DECISION OF THIS COURT THE DEPARTME NT CANNOT BE PERMITTED TO TAKE A STAND CONTRARY TO THE INSTRUCTIONS ISSUED BY THE BOARD. (3) A SHOW CAUSE NOTICE AND DEMAND CONTRARY TO EXI STING CIRCULARS OF THE BOARD ARE AB INITIO VOID. (4) IT IS NOT OPEN TO THE REVENUE TO ADVANCE AN ARG UMENT OR FILE AN APPEAL CONTRARY TO THE CIRCULARS. 7. IN VIEW OF THE ABOVE AND CONSIDERING THE CBDTS CIRCULAR F. NO. 279/MISC.-64/05-ITJ DATED 24 TH OCTOBER 2005 READ WITH INSTRUCTION NO. 2/2005 DAT ED 24 TH OCTOBER 2005 AND INSTRUCTION NO. 5/2008 DATED 15.05.2008 WE HOLD TH AT BOTH THE APPEALS FILED BY THE DEPARTMENT ARE CONTRARY TO THE SAID CIRCULARS/ INSTRUCTIONS OF THE CBDT. ACCORDINGLY THEY ARE NOT ADMITTED AND ARE BEING DISMISSED IN LIMINE. 8. IN THE RESULT BOTH THE APPEALS FILED BY THE DEP ARTMENT ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.03. 2011. SD/- SD/- [B.K. HALDAR ( . . )] [ B.R. MITT AL / . . ] ACCOUNTANT MEMBER/ JUDICIAL MEMBER/ ] DATED : 24/ 03/ 2011 ITA NOS.1940 & 1941-KOL.-2010 4 COPY OF THE ORDER FORWARDED TO: 1. M/S. ORIENT INTERNATIONAL LTD. 6 OLD POST OFFICE STREET 4 TH FLOOR KOLKATA-1. 2 ITO WARD-6(3) KOLKATA P-7 CHOWRINGHEE SQUARE K OLKATA- 69. 3. CIT(A)- KOLKATA 4. CIT- KOLKATA 5. DR KOLKATA BENCHES KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR I.T.A.T. KOLKA TA. LAHA SR. P.S.