ITO, Bijapur v. Sri. Bhimashankar S. Pujari, Sindagi

ITA 479/BANG/2011 | 2008-2009
Pronouncement Date: 16-02-2012 | Result: Dismissed

Appeal Details

RSA Number 47921114 RSA 2011
Assessee PAN ADHPP0359B
Bench Bangalore
Appeal Number ITA 479/BANG/2011
Duration Of Justice 9 month(s) 21 day(s)
Appellant ITO, Bijapur
Respondent Sri. Bhimashankar S. Pujari, Sindagi
Appeal Type Income Tax Appeal
Pronouncement Date 16-02-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 16-02-2012
Assessment Year 2008-2009
Appeal Filed On 25-04-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.K. SAINI ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K. JUDICIAL MEMBER ITA NOS. A.Y. APPELLANT VS. RESPONDENTS 479/BANG/2011 2008-09 THE INCOME TAX OFFICER WARD 2 BIJAPUR. SHRI BHIMASHANKAR S. PUJARI NEAR H.G. HIGH SCHOOL COLLEGE ROAD BIJAPUR. PAN: ADHPP 0359B 480/BANG/2011 2008-09 - DO - SHRI GANGADHAR NEELAPPA KUMBAR L/H OF LATE SRI CHENNABASAPPA GANGADHAR KUMBAR H.NO.2681/C VIDYA NAGAR NEAR WATER TANK SINDAGI - 586 128. DIST. BIJAPUR. PAN: ADXPK 1554F 481/BANG/2011 2008-09 - DO - SHRI SHIVAPPA HUCHAPPA SHAMBEWAD KALIKA NAGAR SINDAGI. DIST. BIJAPUR. PAN: AHHPS 7845K ITA NOS. 479 TO 481/BANG/11 & CO NOS. 46 TO 48/BANG/11 PAGE 2 OF 6 CO NOS. A.Y. CROSS OBJECTORS VS. RESPONDENT 46/BANG/2011 2008-09 SHRI BHIMASHANKAR S. PUJARI NEAR H.G. HIGH SCHOOL COLLEGE ROAD BIJAPUR. PAN: ADHPP 0359B THE INCOME TAX OFFICER WARD 2 BIJAPUR. 47/BANG/2011 2008-09 SHRI GANGADHAR NEELAPPA KUMBAR L/H OF LATE SRI CHENNABASAPPA GANGADHAR KUMBAR H.NO.2681/C VIDYA NAGAR NEAR WATER TANK SINDAGI - 586 128. DIST. BIJAPUR. PAN: ADXPK 1554F - DO - 48/BANG/2011 2008-09 SHRI SHIVAPPA HUCHAPPA SHAMBEWAD KALIKA NAGAR SINDAGI. DIST. BIJAPUR. PAN: AHHPS 7845K - DO - REVENUE BY : SHRI SARAVANAN B. JT.CIT(DR) ASSESSEE BY : NONE DATE OF HEARING : 16.02.2012 DATE OF PRONOUNCEMENT : 16.02.2012 ITA NOS. 479 TO 481/BANG/11 & CO NOS. 46 TO 48/BANG/11 PAGE 3 OF 6 O R D E R PER BENCH THESE APPEALS BY THE DEPARTMENT AND THE CROSS OB JECTIONS BY THE ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORD ERS EACH DATED 18 TH FEBRUARY 2011 OF THE CIT(APPEALS) BELGAUM FOR TH E ASSESSMENT YEAR 2008-09. 2. FOLLOWING COMMON GROUNDS HAVE BEEN RAISED IN TH ESE APPEALS BY THE DEPARTMENT: 1. THE CIT(A) ERRED IN IGNORING E-CIRCULAR ON EX IT OPTION SCHEME ISSUED BY THE STATE BANK OF INDIA C ORPORATE CENTRE MUMBAI. AS PER PARA 10 OF THE AID CIRCULAR IT IS CLEARLY MENTIONED THAT NO EXEMPTION OF EX-GRATIA FROM INCOM E TAX U/S. 10(10C) OF THE I.T. ACT 1961 IS INTENDED IN THAT SCHEME. 2. THE CIT(A) ERRED IN PRESUMING THAT REQUIREMENTS OF RULE 2BA OF I.T. RULES 1962 HAVE BEEN MET. 3. THE CIT(A) ERRED IN ALLOWING THE APPEAL IGNORING BOARDS INSTRUCTION NO.200/34/2009-ITA.1 DATED 6-10-2009 WH EREIN IT IS MENTIONED THAT THE STATE BANK OF PATIALA AND STATE BANK OF INDIA ARE OFFERING EXIT OPTION SCHEMES TO EMPLOYEES OF VA RIOUS GRADES IN THE MANAGEMENT OF THE BANK. THESE SCHEMES CLEAR LY LAY OUT THAT THEY ARE NOT ELIGIBLE FOR DEDUCTION UNDER SECT ION 10(10C) OF THE INCOME TAX ACT 1961. SOME EMPLOYEES WHO HAVE AVAILED OF THESE SCHEMES ARE NEVERTHELESS CLAIMING EXEMPTION O F THE BENEFITS RECEIVED FROM SUCH SCHEME UNDER SECTION 10 (10C). 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. AT TH E VERY OUTSET IT IS NOTICED THAT THE TAX EFFECT IN EACH OF THESE DEPART MENTAL APPEALS IS LESS THAN RS.3 LAKHS I.E. THE AMOUNT PRESCRIBED BY THE CBDT FOR NOT FILING THE APPEAL BEFORE THE I.T.A.T. SO THE DEPARTMENT SHOUL D NOT HAVE FILED THESE APPEALS IN VIEW OF THE INSTRUCTIONS ISSUED BY THE C BDT. ITA NOS. 479 TO 481/BANG/11 & CO NOS. 46 TO 48/BANG/11 PAGE 4 OF 6 4. THE LD. DR HOWEVER STATED THAT THE ISSUE AGITA TED BY THE DEPARTMENT SHOULD BE DECIDED ON MERITS. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND THE MATERIAL ON RECORD IT IS NOTICED THAT SECTION 268A HAS BEEN IN SERTED BY THE FINANCE ACT 2008 WITH RETROSPECTIVE EFFECT FROM 1.4.99. T HE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY FROM TIME TO TIME ISSUE ORDERS INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTH ORITIES FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT FOR THE PU RPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFE RENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PROVISIONS OF THIS C HAPTER. (2) WHERE IN PURSUANCE OF THE ORDERS INSTRUCTION S OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AN INCOME- TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFEREN CE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR AP PLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF - (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UND ER SUB-SECTION (1) IT SHALL NOT LAWFUL FOR AN ASSESSEE BEING A P ARTY IN ANY APPEAL OR REFERENCE TO CONTEND THAT THE INCOME-TAX AUTHOR ITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT HEARING SUCH APPEAL OR REFERENCE SHALL HAVE REGARD TO THE ORDERS INSTRUC TIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIR CUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENC E WAS FILED NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER INSTRUCTION OR DIRECTION WHICH HA S BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN A PPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE B EEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SEC TIONS (2) (3) AND (4) SHALL APPLY ACCORDINGLY. ITA NOS. 479 TO 481/BANG/11 & CO NOS. 46 TO 48/BANG/11 PAGE 5 OF 6 6. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO NS OR DIRECTIONS ISSUED TO OTHER INCOME-TAX AUTHORITIES ARE BINDING ON THOSE A UTHORITIES THEREFORE THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VI EW OF THE ABOVE MENTIONED PROVISIONS OF SECTION 268A SINCE THE TAX EFFECT IN EACH OF THE INSTANT CASES IS LESS THAN RS.3.00 LAKHS I.E. THE AMOUNT PRESCRIBED BY THE CBDT FOR NOT FILING THE APPEAL SO THESE APPEALS AR E DISMISSED. 7. IN THE CROSS OBJECTIONS FILED BY THE ASSESSEES THE FOLLOWING COMMON GROUNDS HAVE BEEN RAISED: 1. THE ASSESSING OFFICER HAS ERRED IN DISALLOWI NG EXEMPTION U/S. 10(10C) OF THE INCOME TAX ACT 1961. 2. THE ASSESSING OFFICER HAS ERRED IN NOT APPRECIAT ING THE ITEMS 4 & 5 OF THE GROUNDS OF APPEAL WHILE DENYING EXEMPTION U/S. 10(10C) WHICH IS BASED ON THE BASIC PRINCIPLE OF JUSTICE. 3. FOR THESE AND ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING THE APPELLANT AS IN DUTY BOUND EVE RY PRAY. 8. A BARE READING OF THE AFORESAID GROUNDS RAISED B Y THE ASSESSEES IN THE CROSS OBJECTIONS CLEARLY SHOW THAT THE ASSESSEE S ARE SUPPORTING THE ORDER OF THE LD. CIT(APPEALS) AND NO RELIEF IS SOUG HT. THEREFORE THESE CROSS OBJECTIONS ARE NOT MAINTAINABLE IN VIEW OF TH E RATIO LAID DOWN BY HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SUNDARAM CLAYTON LTD. [1982] 136 ITR 315 WHEREIN IT HAS BEEN HELD AS UNDER: THAT WHEN THE ASSESSEE HAD SUCCEEDED WHOLLY BEFORE THE AAC THERE WAS NO SCOPE FOR FILING AN APPEAL OR CROSS-OB JECTION. A CROSS-OBJECTION BEING IN THE NATURE OF AN APPEAL ALLOWING THE CROSS-OBJECTIONS WOULD MEAN INTERFERING WITH THE OR DER OF THE AAC AND AS THE TRIBUNAL HAD DISMISSED THE DEPARTMEN TAL APPEAL AND UPHELD THE FINDINGS OF THE AAC IT SHOULD HAVE DISMISSED THE ITA NOS. 479 TO 481/BANG/11 & CO NOS. 46 TO 48/BANG/11 PAGE 6 OF 6 CROSS-OBJECTIONS IN LIMINE AS NOT BEING ENTERTAINAB LE. THE TRIBUNAL WAS NOT JUSTIFIED IN TECHNICALLY ALLOWING THE CROSS- OBJECTIONS. 9. IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE M ADRAS HIGH COURT IN THE AFORESAID REFERRED TO CASE THESE CROSS OBJECTI ONS ARE DISMISSED. FURTHERMORE SINCE THE APPEALS FILED BY THE DEPARTM ENT ARE DISMISSED THESE CROSS OBJECTIONS ARISING OUT OF THESE APPEALS BECOME INFRUCTUOUS ON THAT SCORE ALSO THESE CROSS OBJECTIONS ARE NOT MAI NTAINABLE. 10. IN THE RESULT THE APPEALS BY THE DEPARTMENT AN D THE CROSS OBJECTIONS BY THE ASSESSEES ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF FEBRUARY 2012. SD/- SD/- ( GEORGE GEORGE K. ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE DATED THE 16 TH FEBRUARY 2012. DS/- COPY TO: 1. APPELLANT 2. RESPONDENTS 3. CIT 4. CIT(A) 5. DR ITAT BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE.