THE ACIT, 1(2), Bhopal v. SMT. SHASHI SHARMA, Bhopal

ITA 544/IND/2013 | 2001-2002
Pronouncement Date: 29-10-2013 | Result: Dismissed

Appeal Details

RSA Number 54422714 RSA 2013
Assessee PAN AEMPS0106B
Bench Indore
Appeal Number ITA 544/IND/2013
Duration Of Justice 3 month(s) 7 day(s)
Appellant THE ACIT, 1(2), Bhopal
Respondent SMT. SHASHI SHARMA, Bhopal
Appeal Type Income Tax Appeal
Pronouncement Date 29-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 29-10-2013
Assessment Year 2001-2002
Appeal Filed On 22-07-2013
Judgment Text
1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO. 544/IND/2013 A.Y. 2001-02 ACIT 1(2) BHOPAL :: APPELLANT VS SMT. SHASHI SHARMA BHOPAL PAN AEMPS 0106 B :: RESPONDENT DEPARTMENT BY SHRI BHIM KUNWAR SR. DR ASSESSEE BY SHRI B.K.NEMA ADV. R.S.NEMA & CO. SATNA DATE OF HEARING 29.10.2013 DATE OF PRONOUNCEMENT 29.10.2013 ITA NO. 463/IND/2013 A.Y. 2008-09 ITO WARD-1(1) INDORE :: APPELLANT VS SUSHEEL KUMAR THAKUR INDORE PAN ADBPT 9816 F :: RESPONDENT 2 DEPARTMENT BY SHRI BHIM KUNWAR SR. DR ASSESSEE BY SHRI S.S. DESHPANDE DATE OF HEARING 29.10.2013 DATE OF PRONOUNCEMENT 29.10.2013 AND ITA NO. 481/IND/2013 A.Y. 2007-08 DCIT 1(1) INDORE :: APPELLANT VS M/S. ARIHANT CAPITAL MARKETS LTD. INDORE :: RESPONDENT DEPARTMENT BY SHRI BHIM KUNWAR SR. DR ASSESSEE BY SHRI RANJAN AGRAWAL DATE OF HEARING 29.10.2013 DATE OF PRONOUNCEMENT 29.10.2013 O R D E R PER BENCH THE REVENUE IS AGGRIEVED BY THE DIFFERENT ORDERS DA TED 18.3.2013 20.2.2013 AND 22.2.2013 RESPECTIVELY P ASSED BY THE LD. FIRST APPELLATE AUTHORITY ON THE GROUNDS AS DETAILE D IN THE GROUNDS OF RESPECTIVE APPEAL. 3 2. DURING HEARING AT THE OUTSET THE LEARNED COUNS ELS FOR THE PRESENT ASSESSEES POINTED THAT THE TAX EFFECT IN TH E APPEALS OF THE REVENUE IS BELOW PRESCRIBED MONETARY LIMIT. IT WAS ALSO CONTENDED THAT THE IMPUGNED ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI OMPRAKASH CHOURASIA (ITA NO. 38 8/IND/2012 ORDER DATED 17.7.2013). THIS CONTENTION OF THE RESP ECTIVE ASSESSEE WAS NOT CONTROVERTED BY THE REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE ASSERTION WE ARE REPRODUCING HEREUNDER THE AFORESAID ORDER OF THE TR IBUNAL :- 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. A QUERY W AS SPECIFICALLY MADE BY THE BENCH REGARDING TAX EFFECT THE REVENUE COULD NOT CONTROVERT THE FACT THAT THE TAX EFFECT IS BELOW PRESCRIBED LIMIT OF RS. 3 LACS. WE FIND TH AT THE TOTAL INCOME COMPUTED BY THE ASSESSING OFFICER IS O NLY RS.4 27 430/- AS HAS BEEN MENTIONED IN THE ASSESSMENT ORDER ITSELF. SINCE THE DIFFERENTIAL TAX EFFECT IS BELOW THE PRESCRIBED MONETARY LIMIT THEREFORE THIS APPEAL DOES NOT SURVIVE CONSEQUENTLY THIS APPEAL DESERVES DISMISSAL. WHILE COMING TO THIS CONCLUSION WE ARE SUPPORTED BY THE DECISION OF THIS BENCH IN THE CASE OF OMPRAKASH WADHWANI (ITA NO. 481/IND/2012 ORDER DATED 14 TH FEBRUARY 2013) THE RELEVANT PORTION OF WHICH IS REPRODUCED HEREUNDER :- AGGRIEVED BY THE ORDER DATED 5.6.2012 OF THE LD. C IT(A)-II INDORE THE REVENUE IS IN APPEAL FOR ASSESSMENT YEAR 2008-0 9 ON THE GROUNDS AS DETAILED IN THE GROUNDS OF THE APPEAL. 4 2. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSES SEE SHRI S.S. SHEETAL POINTED OUT THAT THE TAX EFFECT IN THE IMPU GNED APPEAL FILED BY THE REVENUE IS BELOW PRESCRIBED MONETARY LIMIT AND ON THE ISSUE OF MONETARY LIMIT THE APPEALS ARE COVERED BY THE ORDE R DATED 3.1.2012 OF THE TRIBUNAL IN THE CASE OF ACIT VS. M/S. CHOUDHARY INNOVATIVE BUSINESS P. LTD. PASSED IN IT(SS)A NOS.70 TO 76/IND/2011. T HIS FACTUAL ASSERTION OF THE LEARNED COUNSEL FOR THE ASSESSEE WAS NOT CON TROVERTED BY THE REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. IN VIEW OF THE ABOVE W E ARE REPRODUCING HEREUNDER THE RELEVANT PORTION OF THE AFORESAID ORD ER DATED 3.1.2012: AGGRIEVED BY THE DIFFERENT ORDERS DATED 26.7.2011 OF THE LD. CIT(A)-I INDORE THE REVENUE IS IN APPEAL FOR ASSESSMENT YEA RS 2003-04 TO 2009- 10 ON THE GROUNDS AS DETAILED IN THE GROUNDS OF THE RESPECTIVE APPEAL WHEREAS THE ASSESSEE HAS PREFERRED CROSS-OBJECTIONS FOR THE SAME ASSESSMENT YEARS. 2. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSES SEE SHRI P.D. NAGAR POINTED OUT THAT THE TAX EFFECT IN THE RESPEC TIVE APPEAL FILED BY THE REVENUE IS BELOW PRESCRIBED MONETARY LIMIT AND ON THE ISSUE OF MONETARY LIMIT THE APPEALS ARE COVERED BY THE ORDE R OF THE TRIBUNAL IN THE CASE OF NATHULAL JAIN IN ITA NO.475/IND/2010 (A .Y. 2006-07) ORDER DATED 29.6.2011. THIS FACTUAL ASSERTION OF THE LEAR NED COUNSEL FOR THE ASSESSEE WAS NOT CONTROVERTED BY THE REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. IN VIEW OF THE ABOVE W E ARE REPRODUCING HEREUNDER THE RELEVANT PORTION OF THE AFORESAID ORD ER DATED 29.6.2011: AGGRIEVED BY THE ORDER DATED 3 RD MARCH 2010 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THE REVENUE I S IN APPEAL ON THE GROUND THAT LEARNED COMMISSIONER OF INCOME T AX (APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS. 7 85 000/- OUT OF TOTAL ADDITION OF RS. 8 85 000/- MADE BY THE ASS ESSING OFFICER ON ACCOUNT OF UNEXPLAINED LOAN CREDIT U/S 68 OF TH E ACT WHEREAS THE ASSESSEE HAS FILED THE CROSS OBJECTION ON THE G ROUND THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NO T JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER I N RESPECT OF THE ADDITION OF RS. 1 LAC MADE U/S 68 OF THE ACT WITHOU T CONSIDERING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE H IM. 2. DURING HEARING OF THIS APPEAL THE LD. COUNSEL F OR ASSESSEE CONTENDED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE PRESCRIBED LIMIT THEREFORE THE APPEAL OF THE REVE NUE DESERVES TO BE DISMISSED ON THIS COUNT ITSELF BY FURTHER SUBMIT TING THAT THE TAX EFFECT IS RS. 2 52 450/- THEREFORE NO APPEAL CAN BE FILED 5 BEFORE THE TRIBUNAL WHICH IS HAVING THE TAX EFFECT LESS THAN RS. 3 LACS. THIS FACTUAL MATRIX WAS FAIRLY CONSENTED BY T HE LEARNED SR. DR BUT SUBMITTED THAT THE CIRCULAR OF CBDT IS EFFEC TIVE FROM A PARTICULAR DATE THEREFORE THE SUBMISSION OF THE A SSESSEE IS NOT TENABLE. IN REPLY THE LD. COUNSEL FOR ASSESSEE CON TENDED THAT IDENTICALLY THE HONBLE JURISDICTIONAL HIGH COURT H AS HELD THAT IT IS APPLICABLE TO THE APPEALS WHICH ARE PENDING BEFO RE THE TRIBUNAL AND PLACED RELIANCE UPON THE DECISION IN C IT V. ASHOK KUMAR MANIBHAI PATEL & COMPANY (2009) 317 ITR 386 ( MP) ITO VS. M/S LAXMI JEWELS PRIVATE LIMITED (ITA NO. 2165/ MUM/2010). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON FILE. UNDISPUTEDLY THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE PRESCRIBED MONETARY LIM IT IN FILING THE APPEAL BEFORE THE TRIBUNAL. THEREFORE WE ARE REPRO DUCING HEREUNDER THE DECISION OF THE TRIBUNAL IN THE CASE OF RAJAN CLOTH STORES (ITA NO. 365/IND/2010) ORDER DATED 31.5.2011 :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A)-I INDORE DATED 4.3.2010 ON THE GROUND THAT THE LD. C IT(A) ERRED IN OVERLOOKING THE PROVISION OF SEC. 275(1A) OF I.T. A CT AND DELETING PENALTY U/S 271(1)(C) FOR RS.2 32 780/-. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHR I PRADEEP KUAMR MITRA LD. SR. DR FOR THE REVENUE AND SHRI S.S. DES HPANDE LD. COUNSEL FOR THE ASSESSEE. AT THE OUTSET THE LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS BELOW PRESCRIBED MONETARY LIMIT THEREFORE STRAIGHT WAY THE APPEAL OF THE REVENUE MAY BE DISMISSED. THE LD. SR. DR FAIRLY ADMITTED THAT THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSION ON THE ISSUE OF TAX EFFEC T THE BENCH IN THE CASE OF ACIT VS. M/S. SHRIRAM NUTRIENTS LTD. IN ITA NO.123/IND/2010 (A.Y. 2002-03) VIDE ORDER DATED 28.10.2010 HELD A S UNDER: THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER O F THE LEARNED CIT(A)-UJJAIN DATED 16.12.2009 ON THE GROUND WHETH ER IN THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN TREA TING THE ASSESSMENT MADE BY THE A.O. AS INFRUCTUOUS WITHOUT APPRECIATI NG THE FACT THAT OTHERWISE ON 6.3.2006 (THE DATE OF ISSUE OF NOTICE) THE A.O. WAS EMPOWERED TO ISSUE NOTICE U/S 148 FOR THE A.Y. 2002 -03 IN VIEW OF THE PROVISIONS OF SECTION 149(1)(A) READ WITH SECTION 1 51(1) OF THE IT ACT 1961? 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHR I S.S. DESHPANDE LD. COUNSEL FOR THE ASSESSEE AND SHRI P. K. MITRA LEARNED 6 SENIOR DR. THE CRUX OF ARGUMENT IS THAT THE TAX EFF ECT IN THE PRESENT APPEAL IS BELOW MONETARY PRESCRIBED LIMIT THEREFOR E STRAIGHT WAY THE APPEAL OF THE REVENUE MAY BE DISMISSED. THE LD. SR. DR SHRI P.K. MITRA FAIRLY ADMITTED THAT THE TAX EFFECT IS BELOW PRESCR IBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT APPEAL THE INCOME ASSESSED IS RS.1 37 880/ - AND THE TAX INVOLVED IS RS.40 611/- ONLY THEREFORE WITHOUT GO ING INTO MERITS OF THE CASE ON THE PRIMARY OBJECTION OF MONETARY LIMIT TH E APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OUR VIEW IS SUPPO RTED BY THE DECISION OF THE TRIBUNAL IN HIMANSHU FLOUR MILLS (I TA NO.506/IND/2009 ORDER DATED 26.5.2010). THE RELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER: THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 26.8.2009 ON THE GROUND THAT THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS. 5 46 831/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON FIXED ASSETS AND ALSO IN DIRECTING THE ASSESSING OFFICER TO ALLOW CARRY FORWARD OF BROUGHT FORWARD LOSSES OF EARLIER YEARS. 2. DURING HEARING OF THIS APPEAL WE HAVE HEARD THE LEARNED COUNSELS FROM BOTH THE SIDES AND CONSIDERED THE ARG UMENTS ADVANCED BY THEM. AT THE OUTSET THE LD. COUNSEL FOR THE AS SESSEE RAISED A PRELIMINARY OBJECTION THAT SINCE THE TAX EFFECT IS BELOW THE PRESCRIBED MONETARY LIMIT THEREFORE THE DEPARTMENT IS NOT PE RMITTED TO FILE THIS APPEAL AND THE SAME DESERVES TO BE DISMISSED ON THI S SHORT GROUND ITSELF. HOWEVER THE LEARNED SR. DR FAIRLY AGREED T HAT THE TAX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE ASSERTION OF THE LEARNED RESPECTIVE COUNS ELS WE ARE OF THE CONSIDERED OPINION THAT THIS APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. OUR VIEW FINDS SUPPORT FROM THE DECISION DATED 2 ND DECEMBER 2009 OF THE TRIBUNAL IN THE CASE OF HIMAN SHU FLOOR MILLS (ITA NO. 507/IND/2009). THE RELEVANT PORTION OF THE SAM E IS REPRODUCED HEREUNDER :- THIS APPEAL IS BY THE REVENUE CHALLENGING THE ORD ER OF THE CIT(A) DATED 26.8.2009. DURING HEARING OF THIS APPEAL I HAVE H EARD SMT. APARNA KARAN LEARNED SENIOR DR AND NO-BODY WAS PRESENT FOR THE ASSESSEE. REGISTERED NOTICE OF HEARING WAS SENT TO THE ASSESSEE ON 11.11 .2009. THE ASSESSEE NEITHER PRESENTED ITSELF NOR MOVED ANY APPLICATION FOR ADJO URNMENT THEREFORE I HAVE NO OPTION BUT TO PROCEED EX-PARTE QUA THE ASSESSEE AND DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE IN THE FILE. 7 2. THE FIRST GROUND RAISED IS THAT THE LEARNED FIRS T APPELLATE AUTHORITY ERRED IN DELETING THE ADDITION OF RS.4 26 936/- MADE ON A CCOUNT OF DISALLOWANCE OF DEPRECIATION ON THE FIXED ASSETS. ON QUESTIONING F ROM THE BENCH ABOUT THE TAX EFFECT IT WAS FAIRLY POINTED OUT THAT THE TAX EFFE CT IS BELOW THE PRESCRIBED MONETARY LIMIT. I HAVE CONSIDERED THE SUBMISSIONS PUT-FORTH BY THE LEARNED SENIOR DR AND PERUSED THE MATERIAL AVAILABLE ON REC ORD. 3. BRIEF FACTS ARE THAT THE ASSESSEE CLAIMED DEPREC IATION OF RS. 8 53 871/- ON THE FIXED ASSETS. THE LEARNED ASSESSING OFFICER BASED UPON THE COMMENTS OF THE AUDITORS IN THE NOTES TO ACCOUNTS AND THE NATUR E OF THE BUSINESS DISALLOWED 50% OF THE DEPRECIATION CLAIMED BY THE ASSESSEE WHI CH WAS WORKED OUT AT RS.4 26 936/-. BEFORE THE LEARNED FIRST APPELLATE AUTHORITY THE SUBMISSION OF THE ASSESSEE WAS THAT THE FIXED ASSETS WERE DULY RE FLECTED IN THE BALANCE SHEET DURING THE RELEVANT PERIOD AND THERE WAS NO NEW ADD ITION IN THE ASSETS. THE DEPRECIATION ON ALL THE ASSETS WAS REGULARLY ALLOWE D SINCE THE DATE OF INCLUSION IN THE BALANCE SHEET. EVEN IN THE IMPUGNED ORDER T HERE IS A FACTUAL FINDING THAT THE ASSESSEE FROM THE DATE OF INCLUSION HAS NOT SHO WN IN ADDITION TO THE BLOCK OF ASSETS AS THE WDV AS ON 31.3.2002 WAS TAKEN AS B ASIS AFTER REDUCING THE SALE OF SOME ASSETS FOR THE CALCULATION OF ALLOWABL E DEPRECIATION FOR THE ASSESSMENT YEAR 2003-04 AND THE ASSESSEE WAS ALLOWE D DEPRECIATION FOR THE ASSESSMENT YEAR 2002-03. THE REVENUE HAS NOT ADDUC ED ANY EVIDENCE CONTROVERTING THE FACTUAL FINDING MENTIONED IN THE IMPUGNED ORDER THEREFORE THE DISALLOWANCE IS DESIRABLE IN THE IMPUGNED APPEA L. EVEN OTHERWISE ON THE TAX EFFECT THIS APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED. THIS VIEW FINDS SUPPORT FROM THE DECISION OF THE TRIBUNAL IN THE CA SE OF R.K. HOTELS (ITA NO.383/IND/09). THE RELEVANT PORTION OF THE ORDER I S REPRODUCED HEREUNDER :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER O F LD. CIT-(A)-II BHOPAL DATED 31.3.2009 FOR THE AY 2005-06 ON THE G ROUND THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN DELETING THE ADD ITION OF 6 37 206/- MADE BY THE AO BY APPLYING THE PROVISIONS OF SEC. 154(3) ON ACCOUNT OF INCORRECTNESS AND INCOMPLETENESS OF BOOKS OF ACCOUN T.. 2. DURING HEARING OF THE APPEAL WE HAVE HEARD SMT. APARNA KARAN LD. SR. DR AND SHRI H.P. VERMA ALONG WITH SHRI ASHI SH GOYAL LD. COUNSEL FOR ASSESSEE. AT THE OUTSET IT WAS POINTED OUT THA T THERE IS TYPOGRAPHICAL ERROR IN MENTIONING THE FIGURE OF RS.6 37 206/- IN THE GROUND OF APPEAL AS THE CORRECT FIGURE IS RS.3 94 732/-. THE ASSERTI ON OF THE ASSESSEE WAS CONSENTED TO BE CORRECT BY THE LD. SR. DR. FURTHER IT WAS POINTED OUT THAT THE TAX EFFECT IS ALSO BELOW MONETARY LIMIT T HEREFORE THE APPEAL OF THE REVENUE MAY BE DISMISSED. THE LD. SR. DR FAIRLY AGREED TO THE SUBMISSION OF THE ASSESSEE TO THE EXTENT THAT THE T AX EFFECT IS BELOW PRESCRIBED MONETARY LIMIT FOR FILING THE APPEAL BEF ORE THE TRIBUNAL. 8 S.NO. AUTHORITY MONETARY LIMIT(IN RS.) 1 ITAT 2 00 000/- 2 APPEAL UNDER SECTION 260A BEFORE HIGH COURT 4 00 000/- 3 SUPREME COURT 10 00 000/- THE BOARD FURTHER CLARIFIED THE TAX EFFECT WHICH M EANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND TH E TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN RE DUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WH ICH APPEAL IS INTENDED TO BE FILED. HOWEVER THE TAX WILL NOT I NCLUDE ANY INTEREST THEREON. IN CASES OF PENALTY ORDERS THE TAX EFFEC T WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE AP PEALED AGAINST. IN THE PRESENT APPEAL THE TOTAL DISPUTED ADDITION IS RS.3 94 732/- THEREFORE AS AGREED/CANVASSED BY LD. REPRESENTATIV ES FROM BOTH SIDES THE TAX EFFECT IS BELOW RS.2 LAKHS THE LIMIT PRESC RIBED FOR FILING APPEAL BEFORE THE TRIBUNAL THEREFORE APPEAL OF THE REVEN UE DESERVES TO BE DISMISSED. OUR VIEW FINDS SUPPORT FROM THE DECISIO N OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASES OF SHRI J.S. LUT HRA (ITA NO.712 TO 715/CHD/2009) AND ITO WARD 2(2) ROPAR VS. THE JHA LLIAN KALAN PRI. COOP MILK PRODUCE SOCIETY LTD. JHALLIAN KALAN DIST T. ROPAR (ITA NO.721/CHD/2009). THEREFORE WITHOUT GOING INTO THE MERITS OF THE CASE FACTS AND THE JUDICIAL PRONOUNCEMENTS (SUPRA) THIS APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES ON 6.10.2009. IN THE LIGHT OF THE ABOVE THIS GROUND OF THE REVEN UE IS HAVING NO MERIT THEREFORE THE STAND OF THE LEARNED CIT(A) IS AFFIR MED CONSEQENTLY THIS GROUND OF THE REVENUE IS DISMISSED. 4. THE NEXT GROUND RAISED IS THAT THE LEARNED FIRST APPELLATE AUTHORITY ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW CARRY FORW ARD OF BROUGHT FORWARD LOSSES OF EARLIER YEARS WITHOUT ANY BASIS. THE CONTENTION RAISED ON BEHALF OF THE REVENUE IS THAT IN COMING TO A PARTICULAR CONCLUSIO N NO BASIS HAS BEEN ADDUCED BY THE LEARNED FIRST APPELLATE AUTHORITY AND IT WAS RIGHTLY DISALLOWED BY THE ASSESSING OFFICER IN THE ABSENCE OF PROOF FURNISHED BY THE ASSESSEE. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. THE STAND OF THE REVENUE IS THAT PROOF OF LAST YEARS LOSSES WAS NOT 9 FURNISHED BY THE ASSESSEE CONSEQUENTLY THESE ARE NO T ALLOWABLE WHEREAS BEFORE THE LEARNED FIRST APPELLATE AUTHORITY THERE IS A FA CTUAL FINDING THAT IN ALL PREVIOUS YEARS RETURNS WERE DULY FILED BY THE ASSE SSEE AND THE SAME WERE AVAILABLE ON RECORD OF THE ASSESSING OFFICER. IN TH E IMPUGNED ORDER THE LEARNED FIRST APPELLATE AUTHORITY HAS DIRECTED THE ASSESSIN G OFFICER TO ALLOW CARRY FORWARD OF BROUGHT FORWARD LOSSES OF EARLIER YEARS WHICH WERE NOT SET OFF AFTER VERIFICATION OF RECORDS OF EARLIER YEARS. EVEN OTH ERWISE IT IS A CASE OF ASSESSED LOSS WHICH HAS NOT BEEN SET OFF. CONSEQUENTLY WE ARE IN AGREEMENT THAT IN VIEW OF THE PROVISIONS OF SECTION 72 IT SHOULD BE A LLOWED. CONSEQUENTLY THERE IS NO GRIEVANCE TO THE REVENUE SINCE IT HAS BEEN REMAN DED BACK TO THE FILE OF THE ASSESSING OFFICER TO DO THE NEEDFUL AFTER VERIFICAT ION OF RECORDS OF EARLIER YEARS. MY VIEW FINDS SUPPORT FROM THE RATIO LAID DOWN IN C IT V. J.H. GOTLA; 156 ITR 323 (SC); TARA DEVI BEHL V. CIT; 218 ITR 541 (P&H). T HE HONBLE APEX COURT IN THE CASE OF CIT V. MAHALAXMI SUGAR MILLS CO. LTD.; 160 ITR 920 EVEN WENT TO THE EXTENT THAT ITO MUST ALLOW SET OFF EVEN IF IT IS NO T CLAIMED BY THE ASSESSEE BECAUSE A DUTY IS CAST UPON THE ITO TO APPLY THE RE LEVANT PROVISIONS OF THE INDIAN INCOMETAX ACT FOR THE PURPOSE OF DETERMINING THE TRUE FIGURE OF ASSESSEES TAXABLE INCOME AND THE CONSEQUENTIAL TAX LIABILITY. MERELY BECAUSE THE ASSESSEE FAILS TO CLAIM THE BENEFIT OF SET OFF CANNOT RELIEVE THE ITO OF HIS DUTY TO APPLY SECTION 72 IN AN APPROPRIATE CASE. I N VIEW OF THESE FACTS AND JUDICIAL PRONOUNCEMENTS I HAVE FOUND NO INFIRMITY IN THE IMPUGNED ORDER CONSEQUENTLY THIS GROUND OF THE REVENUE ALSO FAILS . 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF HEARING ON 1.12.2009. IN THE AFORESAID CASE THE TRIBUNAL HAS PASSED A DE TAILED ORDER THEREFORE WITHOUT GOING INTO THE MERITS OF THE CASE AND RESPE CTFULLY FOLLOWING THE AFORESAID DECISION THIS APPEAL OF THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON 26 TH MAY 2010. IN VIEW OF THE ABOVE THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 28.10.2010. 4. HOWEVER THE CBDT VIDE INSTRUCTION NO.3/2011 DAT ED 9.2.2011 REVISED/RAISED THE MONETARY LIMIT FOR FILING THE AP PEAL BY THE DEPARTMENT AS UNDER: 10 S.NO. AUTHORITY MONETARY LIMIT(IN RS.) 1 ITAT 3 00 000/- 2 APPEAL UNDER SECTION 260A BEFORE HIGH COURT 10 00 000/- 3 SUPREME COURT 25 00 000/- THE ABOVE INSTRUCTIONS ARE APPLICABLE TO THE APPEAL S FILED ON OR AFTER 9.2.2011 ISSUED U/S 268A(1) OF THE I.T. ACT 1961. AS FAR AS THE MERIT OF THE CASE IS CONCERNED IT HAS ALREADY BEEN EXAMINED BY THE LD. CIT(A) BY KEEPING THE PROVISIONS OF SEC. 275(1)(A) OF THE ACT. SINCE THE APPEAL OF THE ASSESSEE WAS DECIDED BY THE LD. CIT(A) VIDE ORDER DATED 4.11.2004 CONSEQUENTLY THE PENALTY PROCEEDINGS WE RE SUPPOSED TO BE DISPOSED OF BY 31.3.2006 WHEREAS THE SAME WAS DECID ED VIDE ORDER DATED 22.4.2009. IN VIEW OF THIS FACT THE ORDER WA S RIGHTLY QUASHED CONSEQUENTLY WE FIND NO INFIRMITY IN THE STAND OF THE LD. CIT(A). THE SAME IS UPHELD. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 31.5.2011. IDENTICALLY THE BENCH IN THE CASE OF VINOD BANSAL ITA NO. 275/IND/2010 VIDE ORDER DATED 22.6.2011 DISMISSED T HE APPEAL OF THE REVENUE ON THE ISSUE OF TAX EFFECT. THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. ASH OK KUMAR MANIBHAI & COMPANY (2009) 317 ITR 386 HELD AS UNDER :- THIS COURT CAN VERY WELL TAKE JUDICIAL NOTICE OF T HE FACT THAT BY PASSAGE OF TIME MONEY VALUE HAS GONE DOWN THE COST OF LITIGATION EXPENSES HAS GONE UP THE ASSESSEE ON THE FILE OF T HE DEPARTMENT HAVE BEEN INCREASED CONSEQUENTLY THE BURDEN ON THE DEPARTMENT HAS ALSO INCREASED TO A TREMENDOUS EXTENT. THE CORR IDORS OF THE SUPERIOR COURTS ARE CHOKED WITH HUGE PENDENCY OF CA SES. IN THIS VIEW OF THE MATTER THE BOARD HAS RIGHTLY TAKEN A D ECISION NOT TO FILE REFERENCES IF THE TAX EFFECT LESS THAN RS. 2 L AKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE D EPARTMENT. IN OUR VIEW THE BOARDS CIRCULAR DATED MARCH 27 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STI LL UNDECIDED. THE DEPARTMENT IS NOT JUSTIFIED IN PROCEEDING WITH THE OLD REFERENCE WHEREIN THE TAX IMPACT IS MINIMAL. THUS THERE IS N O JUSTIFICATION TO PROCEED WITH DECADES OLD REFERENCES HAVING NEGLIGIB LE TAX EFFECT. 11 4. VIDE BOARD INSTRUCTION NO. 5/2008 DATED 15.5.200 8 THE MONETARY LIMIT AND OTHER CONDITIONS FOR FILING THE APPEAL OF THE DEPARTMENT (IN INCOME TAX MATTERS) BEFORE THE APPEL LATE TRIBUNAL HIGH COURT AND SUPREME COURT WAS SPECIFIE D. HOWEVER IN SUPPRESSION OF THESE INSTRUCTIONS VIDE INSTRUCT ION NO. 3/2011 DATED 9.2.2011 THE BOARD INCREASED THE MONETARY LIM IT AS DISCUSSED ABOVE (TABLE). THE TRIBUNAL (MUMBAI BENC H) IN THE CASE OF M/S LAXMI J. JEWEL PRIVATE LIMITED (ITA NO. 2165/MUM/2010) BY FOLLOWING THE DECISION IN THE CAS E OF HONBLE BOMBAY HIGH COURT IN CIT V. MADHUKAR K. INAMDAR (HU F) WHEREIN IT WAS HELD THAT THE CIRCULAR WILL BE APPLI CABLE TO THE CASES PENDING BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOSAL AND HELD THAT INSTRUCTION NO. 3 DATED 9.2. 2011 IS APPLICABLE FOR THE APPEAL PREFERRED BY THE REVENUE AND DISMISSED THE SAME ON TAX EFFECT BY FURTHER CONSIDERING THE D ECISION IN THE CASE OF LIVING STONES JEWELLERY PRIVATE LIMITED VS. DCIT; 31 SOT 323. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS WE DISMISS THE APPEAL OF THE REVENUE ON THE ISSUE OF TAX EFFEC T/MONETARY LIMIT. 4. THERE IS UNCONTROVERTED FACT THAT THE TAX EFFECT IN THE AFORESAID APPEALS IS BELOW PRESCRIBED MONETARY LIMIT. THE TRI BUNAL IN THE AFORESAID ORDER HAS ALREADY CONSIDERED VARIOUS JUDICIAL PRONO UNCEMENTS INCLUDING FROM HONBLE APEX COURT & HIGH COURTS ALONG WITH TH E CIRCULARS OF THE CBDT INCLUDING THE LATEST CIRCULAR NO.3/11 DATED 9. 2.2011 AS PER WHICH THE MONETARY LIMIT FOR FILING THE APPEAL WAS ENHANC ED. IN VIEW OF THESE FACTS THE APPEALS OF THE REVENUE ARE DISMISSED BEI NG NOT MAINTAINABLE. 4. IN VIEW OF THE ABOVE AND THE UNCONTROVERTED POSI TION THAT THE TAX EFFECT IN THE IMPUGNED APPEAL IS RS.2 69 241/- AS P ER CALCULATION SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE A ND NOT CONTROVERTED BY THE REVENUE THEREFORE BEING THE TAX EFFECT IS BELOW MONETARY PRESCRIBED LIMIT THE APPEAL OF THE REVENUE DESERVE S TO BE DISMISSED BEING NOT MAINTAINABLE. FINALLY THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 14.2.2013. 12 3.1 IN VIEW OF THE ABOVE AND MORE SPECIFICALLY THE REVISED MONETARY LIMIT ISSUED BY THE CBDT VIDE INSTRUCTION NO.3/2011 DATED 9.2.2011 THESE APPEALS OF THE REVENUE ARE DI SMISSED BEING NOT MAINTAINABLE. FINALLY THE APPEALS OF THE REVENUE ARE DISMISSED A S NOT MAINTAINABLE. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 29 TH OCTOBER 2013. SD/- SD/- (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 29.10.2013 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE !VYAS!