I.T.O.-3(1), Gwalior v. Sh. Rajendra Sharma, Gwalior

ITA 239/AGR/2011 | 2002-2003
Pronouncement Date: 20-12-2011 | Result: Dismissed

Appeal Details

RSA Number 23920314 RSA 2011
Assessee PAN AEJPS5986L
Bench Agra
Appeal Number ITA 239/AGR/2011
Duration Of Justice 5 month(s) 26 day(s)
Appellant I.T.O.-3(1), Gwalior
Respondent Sh. Rajendra Sharma, Gwalior
Appeal Type Income Tax Appeal
Pronouncement Date 20-12-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 20-12-2011
Date Of Final Hearing 20-12-2011
Next Hearing Date 20-12-2011
Assessment Year 2002-2003
Appeal Filed On 24-06-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH SMC AGRA BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO.239/AGR/2011 ASSESSMENT YEAR: 2002-03 INCOME TAX OFFICER 3(1) VS. SHRI RAJENDRA SHARM A GWALIOR. S/O. SHRI SHANKARLAL SHARMA 25 SAKET NAGAR TANSEN ROAD GWALIOR. (PAN: AEJPS 5986 L). C.O. NO.37/AGR/2011 (IN ITA NO.239/AGR/2011) ASSESSMENT YEAR: 2002-03 SHRI RAJENDRA SHARMA VS. INCOME TAX OFFICER 3(1 ) S/O. SHRI SHANKARLAL SHARMA GWALIOR. 25 SAKET NAGAR TANSEN ROAD GWALIOR. (PAN: AEJPS 5986 L) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI. A.K. SHARMA JR. D.R. ASSESSEE BY : SHRI MANUJ SHARMA ADVOCATE DATE OF HEARING : 20.12.2011 DATE OF PRONOUNCEMENT : 20.12.2011 ORDER THE APPEAL BY THE REVENUE AND THE CROSS OBJECTION B Y THE ASSESSEE HAVE BEEN FILED AGAINST THE IMPUGNED ORDER DATED 22.03.2 011 PASSED BY THE LD. CIT(A) GWALIOR FOR THE ASSESSMENT YEAR 2002-03 ON THE FOLL OWING GROUNDS :- ITA NO.239/AGR/2011 & C.O. NO.37/AGR/2011 A.Y. 2002-03 2 GROUNDS IN ITA NO.239/AGR/2011 1. WHETHER ON THE FACTS AND IN THE LAW OF THE CASE THE CIT(APPEAL) HAS ERRED IN CANCELLING THE ASSESSMENT ORDER PASSED U/S 144/147 OF THE I.T. ACT. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF ` 75 910/- ON ACCOUNT OF AGRICULTURE INCOME. GROUNDS IN C.O. NO.37/AGR/2011 1. THAT THE REVENUES APPEAL INVOLVING TAX EFFECT OF ` 25536/- BEING BELOW THE MONETARY LIMIT OF ` 2 LACS AS PRESCRIBED VIDE C.B.D.T. CIRCULAR/INSTRUCTION NO.5/2008 DATED 15.05 .2008 MAY NOT BE ENTERTAINED AND THE SAME IS LIABLE TO BE DISMISSED IN LIMINE. 2. THE RESPONDENT ASSESSEE CRAVES LEAVE TO ADD AME ND ALTER MODIFY SUBSTITUTE OR DELETE ANY GROUND AT THE TIME OF OR BEFORE HEARING OF THE APPEAL/CROSS-OBJECTION. 2. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE HAS ALSO FILED CROSS OBJECTION IN WHICH TH E ASSESSEE HAS PLEADED THAT THE REVENUE HAS FILED THE PRESENT APPEAL CONTRARY TO TH E C.B.D.T. CIRCULAR/INSTRUCTION NO.5/2008 DATED 15.05.2008 AND THE APPEAL IS NOT MA INTAINABLE. HE REQUESTED THAT THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED IN LIMINE. ITA NO.239/AGR/2011 & C.O. NO.37/AGR/2011 A.Y. 2002-03 3 3. ON THE CONTRARY THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDER PASSED BY THE REVENUE AUTHORITIES I AM OF THE VIEW THAT THE REVENUE HAS FILED THE PRESENT APPEAL ON 24.06.2011. THE CIRCULAR/INSTRUCTION REFERRED BY T HE ASSESSEE IN THE GROUND OF APPEAL OF THE CROSS OBJECTION (SUPRA) IS AN OLD CIR CULAR/INSTRUCTION I.E. CIRCULAR/INSTRUCTION NO.05/2008 DATED 15.05.2008 BU T IN THE PRESENT CASE THE LATEST CIRCULAR/INSTRUCTION NO.3/2011 [F. NO.279/MISC.142/ 2007-ITJ] DATED 09.02.2011 IS APPLICABLE. THE CONTENTS OF THE SAID CIRCULAR/I NSTRUCTION DATED 09.02.2011 ARE REPRODUCED AS UNDER :- REVISED LIMITS FOR FILING APPEALS BY DEPARTMENT BE FORE APPELLATE AUTHORITIES INSTRUCTION NO.3/2011 [F. NO.279/MISC.1 42/2007-ITJ] DATED 09.02.2011 REFERENCE IS INVITED TO BOARDS INSTRUCTION NO. 5/2008 DATED 15-5- 2008 WHEREIN MONETARY LIMITS AND OTHER CONDITIONS FOR F ILING DEPARTMENTAL APPEALS (IN INCOME-TAX MATTERS) BEFORE APPELLATE TRIBUNAL HIGH COURTS AND SUPREME COURT WERE SPECIF IED. 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION IT HA S BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE APPELLATE TRIBUNAL HIGH COURTS AND SUPREME COURT K EEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH APPEALS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HE REUNDER:- ITA NO.239/AGR/2011 & C.O. NO.37/AGR/2011 A.Y. 2002-03 4 S. NO. APPEALS IN INCOME- TAX MATTERS MONETARY LIMIT (IN RS.) 1. APPEAL BEFORE APPELLATE TRIBUNAL 3 00 000 2. APPEAL U/S 260A BEFORE HIGH COURT 10 00 000 3. APPEAL BEFORE SUPREME COURT 25 00 000 IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCR IBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE TAX EFFECT MEANS THE DIFFER ENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT W OULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEA L IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS DISPUTED ISSUES ). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEAB ILITY OF INTEREST IS THE ISSUE UNDER DISPUTE THE AMOUNT OF INTEREST SHALL B E THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDIT IONS. IN CASE OF PENALTY ORDERS THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX E FFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTE D ISSUES IN THE CASE OF EVERY ASSESSEE. IF IN THE CASE OF AN ASSESSEE THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT YEAR APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH T HE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF AN A SSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONE TARY LIMIT SPECIFIED IN PARA 3. IN OTHER WORDS HENCEFORTH APPEALS CAN BE FILED ONLY WITH REFERENCE TO THE TAX EFFECT IN THE RELEVANT ASSESSM ENT YEAR. HOWEVER ITA NO.239/AGR/2011 & C.O. NO.37/AGR/2011 A.Y. 2002-03 5 IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OR A PPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND CO MMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR APPEAL SHALL BE FILE D IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFECT IS L ESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S) I F IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFE CT EXCEEDS THE MONETARY LIMIT PRESCRIBED. IN CASE WHERE A COMPOSIT E ORDER/JUDGMENT INVOLVES MORE THAN ONE ASSESSEE EACH ASSESSEE SHAL L BE DEALT WITH SEPARATELY. 6. IN A CASE WHERE APPEAL BEFORE A TRIBUNAL OR A C OURT IS NOT FILED ONLY ON ACCOUNT OF THE TAX EFFECT BEING LESS THAN T HE MONETARY LIMIT SPECIFIED ABOVE THE COMMISSIONER OF INCOME-TAX SHA LL SPECIFICALLY RECORD THAT EVEN THOUGH THE DECISION IS NOT ACCEPT ABLE APPEAL IS NOT BEING FILED ONLY ON THE CONSIDERATION THAT THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN THIS INSTRUCTION. FURT HER IN SUCH CASES THERE WILL BE NO PRESUMPTION THAT THE INCOME-TAX DE PARTMENT HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUES. THE INCOME-TAX DEPARTMENT SHALL NOT BE PRECLUDED FROM FILING AN AP PEAL AGAINST THE DISPUTED ISSUES IN THE CASE OF THE SAME ASSESSEE FO R ANY OTHER ASSESSMENT YEAR OR IN THE CASE OF ANY OTHER ASSESS EE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR IF THE TAX EFFECT EXCEED S THE SPECIFIED MONETARY LIMITS. 7. IN THE PAST A NUMBER OF INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WHEREBY AN ASSESSEE HAS CLAIMED RELIEF F ROM THE TRIBUNAL OR THE COURT ONLY ON THE GROUND THAT THE DEPARTMENT HAS IMPLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN T HE CASE OF THE ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR IN THE CA SE OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR BY NOT FILING AN APPEAL ON THE SAME DISPUTED ISSUES. THE DEPARTMENTA L REPRESENTATIVES/COUNSELS MUST MAKE EVERY EFFORT TO BRING TO THE NOTICE OF THE TRIBUNAL OR THE COURT THAT THE APPEAL IN SUC H CASES WAS NOT FILED OR NOT ADMITTED ONLY FOR THE REASON OF THE TA X EFFECT BEING LESS THAN THE SPECIFIED MONETARY LIMIT AND THEREFORE N O INFERENCE SHOULD BE DRAWN THAT THE DECISIONS RENDERED THEREIN WERE A CCEPTABLE TO THE DEPARTMENT. ACCORDINGLY THEY SHOULD IMPRESS UPON T HE TRIBUNAL OR THE COURT THAT SUCH CASES DO NOT HAVE ANY PRECEDENT VALUE. AS THE EVIDENCE OF NOT FILING APPEAL DUE TO THIS INSTRUCTI ON MAY HAVE TO BE ITA NO.239/AGR/2011 & C.O. NO.37/AGR/2011 A.Y. 2002-03 6 PRODUCED IN COURTS THE JUDICIAL FOLDERS IN THE OFF ICE OF CSIT MUST BE MAINTAINED IN A SYSTEMIC MANNER FOR EASY RETRIEVAL. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISS UES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EF FECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT. (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVI SIONS OF AN ACT OR RULE ARE UNDER CHALLENGE OR (B) WHERE BOARDS ORDER NOTIFICATION INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. 9. THE PROPOSAL FOR FILING SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION BEFORE THE SUPREME COURT SHOULD IN ALL CASES BE SENT TO THE DIRECTORATE OF INCOME-TAX (LEGAL & RESE ARCH) NEW DELHI AND THE DECISION TO FILE SPECIAL LEAVE PETITION SHA LL BE IN CONSULTATION WITH THE MINISTRY OF LAW AND JUSTICE. 10. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE SHALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OTHER THAN INCO ME-TAX FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVERNED BY RELEVANT PROVISIONS OF STATUTE AND RULES. FURTHER FILING OF APPEAL IN CASES OF INCOME-TAX WHERE THE TAX EFFECT IS NOT QU ANTIFIABLE OR NOT INVOLVED SUCH AS THE CASE OF REGISTRATION OF TRUST S OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT 1961 SHALL NOT BE GOVER NED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AND DECISION TO FILE APPE AL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 11. THIS INSTRUCTION WILL APPLY TO APPEALS FILED O N OR AFTER 9TH FEBRUARY 2011 . HOWEVER THE CASES WHERE APPEALS HAVE BEEN FILED BEFORE 9TH FEBRUARY 2011 WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. ITA NO.239/AGR/2011 & C.O. NO.37/AGR/2011 A.Y. 2002-03 7 12. THIS ISSUES UNDER SECTION 268A(1) OF THE INCOM E-TAX ACT 1961. 5. KEEPING IN VIEW OF THE AFORESAID CIRCULAR/INSTRU CTION I AM OF THE VIEW THAT THE DEPARTMENT HAS FILED THE PRESENT APPEAL ON 24.0 6.2011 I.E. AFTER THE ISSUANCE OF THE CIRCULAR/INSTRUCTION DATED 09.02.2011 AND THE M ONETARY LIMIT TO FILE THE APPEAL BY THE DEPARTMENT BEFORE THE TRIBUNAL IS ` 3 LACS. BUT IN THE PRESENT APPEAL THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT PRESCRIB ED BY THE BOARD IN THE SAID CIRCULAR/INSTRUCTION. THEREFORE THE PRESENT APPEA L IS NOT MAINTAINABLE AND IS DISMISSED IN LIMINE AND THE CROSS OBJECTION FILED B Y THE ASSESSEE IS ALSO DISMISSED AS INFRUCTUOUS BECAUSE THE ASSESSEE HAS MENTIONED T HE OLD INSTRUCTION WHICH IS NOT APPLICABLE IN THE PRESENT APPEAL AS DISCUSSED ABOVE . 6. IN THE RESULT APPEAL FILED BY THE REVENUE AND T HE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 20.12.2011). SD/- (H.S. SIDHU) JUDICIAL MEMBER DATE: 20 TH DECEMBER 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R. ITAT AGRA BENCH AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY