ITO, Ward - 53(4), Kolkata, Kolkata v. Shri Bimal Kr. Roy, Kolkata

ITA 2072/KOL/2009 | 2004-2005
Pronouncement Date: 29-04-2010

Appeal Details

RSA Number 207223514 RSA 2009
Assessee PAN AGDPR9201R
Bench Kolkata
Appeal Number ITA 2072/KOL/2009
Duration Of Justice 4 month(s) 22 day(s)
Appellant ITO, Ward - 53(4), Kolkata, Kolkata
Respondent Shri Bimal Kr. Roy, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 29-04-2010
Appeal Filed By Department
Bench Allotted C
Tribunal Order Date 29-04-2010
Date Of Final Hearing 29-04-2010
Next Hearing Date 29-04-2010
Assessment Year 2004-2005
Appeal Filed On 07-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH - C KOLKATA ( ) BEFORE . . SHRI B.R.MITTAL JUDICIAL MEMBER. /AND . . SHRI C.D. RAO ACCOUNTANT M EMBER . / I.T.A.NO. 2072/KOL/2009 AND / CROSS OBJECTION NO.1/KOL/2010 (FILED BY ASSESSEE) / ASSESSMENT YEAR 2004 - 05 INCOME - TAX OFFICER WARD 53(4) KOLKATA. - - - VERSUS - . SRI BIMA L KUMAR ROY 44/6 RAJA RAM MOHAN ROY ROAD KOLKATA 700 008 AGDPR 9201 R ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI PIYUSH KOLHE DR / FOR THE RESPONDENT : / SHRI V.N.DATTA AR / ORDER . . SHRI B.R.MITTAL JUDICIAL MEMBER. THE DEPARTMENT HAS FILED THIS APPEAL FOR THE ASSESSMENT YEAR 2004 - 05 AGAINST ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) DT. 31.7.2009 ON THE FOLLOWING GROUND. ON THE FACTS AND CIRCUM STANCE OF THE CASE THE LD. CIT(A) XXXIII KOLKATA ERRED BOTH IN FACT AS WELL AS IN LAW IN ALLOWING EXPENDITURE @20% ON ASSESSEE PROFESSIONAL GROSS RECEIPTS OF RS.6 36 377 INSTEAD OF ON RS.15 000 AND ALSO IN HOLDING THAT BANK DEPOSITS TOTALING RS.4 25 000 WAS TRANSFERRED FROM INDIAN OVERSEAS BANK THROUGH DEMAND DRAFT. 2. ON THE OTHER HAND THE ASSESSEE HAS FILED CROSS OBJECTION AS UNDER : 1. FOR THAT THE INITIATION OF THE PROCEEDINGS U/S.148 AS WELL AS THE ASSESSMENT MADE IS BAD AND NOT TENABLE IN LAW. 2. FOR THAT THE LEARNED CIT(A) IS ERRED IN ESTIMATING THE BUSINESS EXPENSES AND RESTRICTED THE BUSINESS EXPENSES TO THE TUNE OF 20% OF THE GROSS PROFESSIONAL RECEIPT AGAINST THE CLAIM OF 60% BY THE ASSESSEE. / I.T.A.NO.2072/KOL/2009 AND / CROSS OBJECTION NO.1/KOL/2010 2 3. FOR THAT OTHER GROUNDS OF CROSS - 0BJECTION MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL . 3. AT THE TIME OF HEARING THE LEARNED AR OF THE ASSESSEE CONTENDED THAT THE TAX EFFECT IN THE APPEAL FILED BY THE DEPARTMENT IS BELOW RS.2 LAKHS AND THEREFORE THE APPEAL OF THE DEPARTMENT IS LIABLE TO BE UNADMITTED AND DISMISSED IN VIEW OF THE CIRCULAR NO.279/MISC. - 64/05 - ITJ DATED 24 - 10 - 2005 READ WITH INSTRUCTION NO.2/2005 DT.24.10.2005 . 4. LD. D.R. IN HIS SUBMISSION DID NOT DISPUTE THE FACT THAT THE TOTAL TAX EFFECT IN THE PRESENT APPEAL FILED BY THE DEPARTMENT IS LESS THAN RS.2 LAKHS . 5. WE HAVE CONSIDERED THE GROUNDS OF APPEAL IN THE LIGHT OF THE CBDT CIRCULAR NO. 279/MISC. - 64/05 - ITJ DATED 24 - 10 - 2005 READ WITH INSTRUCTION NO. 2/2005 DATED 24 - 10 - 2005. 6 . WE FIND THAT THE CBDT VIDE INSTRUCTION NO. 2 /2005 DATED 24.10.2005 ISSUES GUIDELINES TO THE REVENUE AUTHORITIES WITH REGARD TO FILING OF APPEAL BEFORE THE TRIBUNAL HIGH COURT AND THE SUPREME COURT. FROM THE ABOVE INSTRUCTION IT IS EVIDENT THAT SINCE 1987 THE CBDT HAS BEEN INSTRUCTING ITS OFFICERS NOT TO FILE THE APPEAL WHERE THE TAX EFFECT IS BELOW CERTAIN MONETARY LIMITS. VIDE INSTRUCTION NO. 1903 DATED 28.10.1992 THE MONETARY LIMIT WAS REVISED UPWARD AND THE OFFICERS WERE DIRECTED NOT TO FILE APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL WHERE THE TAX EFFECT WAS BELOW RS.25 000/ - . THE ABOVE MONETARY LIMIT WAS FURTHER REVISED UPWARD BY INSTRUCTION NO. 1979 DATED 27.3.2000 AND THE OFFICERS WERE DIRECTED NOT TO FILE THE APPEAL TO ITAT WHERE THE TAX EFFECT IS BELOW RS.1 00 000/ - . THEREAFTER IN PARTI AL MODIFICATION OF THE ABOVE INSTRUCTION THE BOARD VIDE INSTRUCTION NO. 2/2005 DATED 24.10.2005 HAS FURTHER RAISED THE ABOVE MONETARY LIMIT TO RS.2 00 000/ - WITH THE SAME DIRECTIONS. THUS THE C.B.D.T. SINCE 1987 HAS NOT ONLY TAKEN A CONSISTENT APPROACH O F INSTRUCTING ITS OFFICERS FOR NOT FILING THE APPEAL WHERE THE TAX 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 BOMBAY HIG H COURT IN THE CASE OF CAMCO COLOUR CO. 254 ITR 565 AND THEIR LORDSHIPS HELD AT PAGE 568 AS UNDER / I.T.A.NO.2072/KOL/2009 AND / CROSS OBJECTION NO.1/KOL/2010 3 IT APPEARS THAT DESPITE THE ABOVE CIRCULAR THE REVENUE HAS CHOSEN TO FILE THE PRESENT APPEAL KNOWINGLY FULLY WELL THAT THE CORRIDORS OF THE COURTS ARE FLOO DED 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 INSTRUCTIONS ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES WE ARE SATISFIED THAT THE BOARD HAS TAKEN A POLICY DECISION NOT TO FILE APPEAL IN A TYPE OF CASE IN HAND AND THE SAME IS BINDING ON THE REVENUE (APPELLANT HEREIN). IN THE RESULT WE DISMISS THIS APPEAL ON THIS COUNT IN LIMINE WITH NO ORDER AS TO COS TS. 7 . WE FIND THAT RECENTLY THE APEX COURT HAS CONSIDERED THE EFFECT OF CIRCULAR ISSUED BY THE CBDT IN THE CASE OF COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATION LTD. 267 ITR 272. THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF THE APEX COURT WIT H REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THE FOLLOWING PRINCIPLES AT PAGE 277 OF THE REPORTS THE PRINCIPLES LAID DOWN BY ALL THESE DECISIONS ARE 1 ) ALTHOUGH A CIRCULAR IS NOT BINDING ON A COURT ON AN ASSESSEE IT IS NOT OPEN TO THE RE VENUE TO RAISE A CONTENTION THAT IS CONTRARY TO A BINDING CIRCULAR BY THE BOARD WHEN A CIRCULAR REMAINS IN OPERATION THE REVENUE IS BOUND BY IT AN D CANNOT BE ALLOWED TO PLEAD THA T IT IS NOT VALID NOR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. 2) D ESPITE THE DECISION OF THIS COURT THE DEPARTMENT CANNOT BE PERMITTED TO TAKE A STAND CONTRARY TO THE INSTRUCTIONS ISSUED BY THE BOARD. 3) A SHOW CAUSE NOTICE AND DEMAND CONTRARY TO EXISTING CIRCULARS OF THE BOARD ARE AB INITIO VOID. 4) IT IS NOT OPEN TO T HE REVENUE TO ADVANCE AN ARGUMENT OR FILE AN APPEAL CONTRARY TO THE CIRCULARS. FROM THE ABOVE IT IS EVIDENT THAT THE HONBLE APEX COURT HAS LAID DOWN THAT IT IS NOT OPEN TO THE REVENUE TO ADVANCE AN ARGUMENT OR FILE AN APPEAL CONTRARY TO THE CIRCULAR. ACCORDINGLY THIS APPEAL FILED BY THE REVENUE IS NOT ADMITTED AND IS BEING DISMISSED IN LIMINE . 8 . ADVERTING TO THE CROSS OBJECTION FILED BY THE ASSESSEE AT THE TIME OF HEARING THE LEARNED AR OF THE ASSESSEE DID NOT PRESS THE CROSS OBJECTION. THEREFORE T HE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED AS NOT PRESSED. / I.T.A.NO.2072/KOL/2009 AND / CROSS OBJECTION NO.1/KOL/2010 4 9 . IN THE RESULT THE APPEAL OF THE DEPARTMENT AND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 29.04.2010 SD/ - SD/ - ( . . ) (C.D. RAO) ACCOUNTANT MEMBER ( . . ) ( B.R.MITTAL ) JUDICIAL MEMBER ( ) DATE : 29.04.2010 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : INCOME - TAX OFFICER WARD 53(4) KOLKATA. 2 / THE RESPONDENT - SRI BIMAL KUMAR ROY 44/6 RAJA RAM MOHAN ROY ROAD KOLKATA 700 008 3. / THE CIT 4. ( )/ THE CIT(A) 5. / DR KOLKATA BENCH 6. GUARD FILE . / TRUE COPY / BY ORDER / DEPUTY REGISTRAR . ( /) H.K.PADHEE / SNR.PRIVATE SECRETARY.