ITO, Ward - 50(1), Kolkata, Kolkata v. Shri Jayanta Kumar Lahiri, North 24 Parganas

ITA 89/KOL/2011 | 2005-2006
Pronouncement Date: 28-09-2011 | Result: Dismissed

Appeal Details

RSA Number 8923514 RSA 2011
Assessee PAN AAYPL9268P
Bench Kolkata
Appeal Number ITA 89/KOL/2011
Duration Of Justice 8 month(s) 15 day(s)
Appellant ITO, Ward - 50(1), Kolkata, Kolkata
Respondent Shri Jayanta Kumar Lahiri, North 24 Parganas
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 28-09-2011
Assessment Year 2005-2006
Appeal Filed On 13-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . ! '# '# '# '# /AND ' # ! ) [BEFORE SHRI S. V. MEHROTRA AM & SRI MAHAVIR SINGH JM] #$ #$ #$ #$ / I.T.A NO. 89/KOL/2011 %& ''( %& ''( %& ''( %& ''(/ // / ASSESSMENT YEAR: 2005-06 INCOME-TAX OFFICER WD-50(1) KOLKATA. VS. SRI JA YANTA KUMAR LAHIRI (PAN-AAYPL 9268 P) (*+ /APPELLANT ) ( -*+/ RESPONDENT ) FOR THE APPELLANT: SHRI A. S. MONDAL FOR THE RESPONDENT: SHRI P. CHAKLADAR DATE OF HEARING: 28.09.2011 DATE OF PRONOUNCEMENT: 28.09.2011 . / ORDER PER MAHAVIR SINGH JM ( ' # ' # ' # ' # ! ! ! ! ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XXXII KOLKATA IN APPEAL NO.114/CIT(A)-XXXII/07-08/50(1)/KOL DATED 27.08.201 0. THE ASSESSMENT WAS FRAMED BY ITO WD-50(1) KOLKATA U/S.143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DA TED 14.12.2007. 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE PRAYED FOR ADJOURNMENT BUT THE SAME WAS REJECTED BY BENCH AS THE TAX EFFECT IS LES S THAN RS. 3 LAKHS. 3. AT THE OUTSET IT WAS INFORMED BY LD. COUNSEL FO R THE ASSESSEE THAT TAX EFFECT IN THIS APPEAL IS BELOW THE PRESCRIBED MONETARY LIMITS FOR FILING OF APPEALS BEFORE ITAT AND OTHER SUPERIOR COURTS. IT SEEMS THAT THE REVENUES APPEA L THE QUANTUM INVOLVED IS RS.7 65 000/- ON WHICH TAX EFFECT WILL BE RS.2 66 459/-. THE ONLY IS SUE NOW REMAINS BEFORE US IS THAT THE APPEAL OF THE REVENUE IS BELOW THE PRESCRIBED LIMIT OF TAX EFFECT IN VIEW OF THE BOARDS INSTRUCTION ISSUED FROM TIME TO TIME REVISING THE MONETARY LIMI TS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE ITAT AND OTHER SUPERIOR COURTS. THE APPEAL RELATES TO ASSESSMENT YEAR 2005-06 AND FILED BEFORE THE TRIBUNAL ON 13.01.2011. SINCE THI S APPEAL FILED ON 13.01.2011 THE SAME WILL BE COVERED BY INSTRUCTION NO. 3/2011 ISSUED ON 09.0 2.2011 I.E. THE REVISED MONETARY LIMIT FOR FILING OF APPEAL BEFORE ITAT WHEREBY THE CBDT HAS FIXED THE LIMIT OF RS. 3 LACS. HONBLE 2 ITA 89/K/2011 SHRI JAYANTA KUMAR LAHIRI . A.Y.05-0 6 DELHI HIGH COURT IN THE CASE OF CIT VS DELHI RACE C LUB IN ITA NO.128/2008 DATED 03.03.2011 HAS HELD AS UNDER: THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S.4 65 860/-. AS PER THE RECENT GUIDELINES OF THE CBDT APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS ARE NOT TO BE ENTERTAINED. THIS COURT IN THE CASE OF COMMISSIONER OF INCOME TA X-III V. M/S. P. S. JAIN AND CO. BEING ITA NO. 179/1991 DECIDED ON 2 ND AUGUST 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT THE REVISED MONETARY LIMIT OF RS. 3 LACS AS PER INSTRUCTION NO.3/2011 WILL APPLY TO PENDING APP EALS. THE RELEVANT CIRCULAR ISSUED BY CBDT READS AS UNDER : INSTRUCTION NO. 3/2011 [F. NO. 279/MISC. 142/2007- ITJ] DATED 9-2-2011 REFERENCE IS INVITED TO BOARD'S INSTRUCTION NO. 5/2 008 DATED 15-5-2008 WHEREIN MONETARY LIMITS AND OTHER CONDITIONS FOR FILING DEPARTMENTAL APPEAL S (IN INCOME-TAX MATTERS) BEFORE APPELLATE TRIBUNAL HIGH COURTS AND SUPREME COURT WERE SPECIF IED. 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION IT HAS BE EN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE APPELLATE TRI BUNAL HIGH COURTS AND SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIE D BELOW. 3. HENCEFORTH APPEALS SHALL NOT BE FILED IN CASES WHER E THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: 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 0 00 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 PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE TAX EFFECT MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUC H TOTAL INCOME BEEN REDUCED BY THE 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 INC LUDE ANY INTEREST THEREON EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UND ER DISPUTE THE AMOUNT OF INTEREST SHALL BE THE TAX EF FECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME THE TAX EFFECT WOULD INCLUDE NO TIONAL TAX ON DISPUTED ADDITIONS. 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 EFFEC T SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF IN THE CASE OF AN ASSESSEE THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT Y EAR APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE 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 ASSESSMENT 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 REFERENC E TO THE TAX EFFECT IN THE RELEVANT ASSESSMENT YEAR. HOWEVER IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH 3 ITA 89/K/2011 SHRI JAYANTA KUMAR LAHIRI . A.Y.05-0 6 INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON I SSUES IN MORE THAN ONE ASSESSMENT YEAR APPEAL SHALL BE FILED IN RESPECT OF ALL SUCH ASSESS MENT YEARS EVEN IF THE 'TAX EFFECT' IS LESS THAN TH E 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 EFFECT' EXCEEDS THE MONETARY LIMIT PRESCRIBED. IN CASE WHERE A COMPOSITE ORDER/JUDGMENT INVOLVES MORE THAN ONE ASSESSEE EAC H ASSESSEE SHALL BE DEALT WITH SEPARATELY. 6. IN A CASE WHERE APPEAL BEFORE A TRIBUNAL OR A COURT IS NOT FILED ONLY ON ACCOUNT OF THE TAX EFFECT BEING LESS THAN THE MONETARY LIMIT SPECIFIED ABOVE THE COMMISSIONER OF INCOME-TAX SHALL SPECIFICALLY RECORD THAT 'EVEN THOUGH THE DECISION IS NOT ACCEPTABLE APPEAL IS NOT BEING FILED ONLY ON THE CONSIDERATION THAT THE TAX EFFECT IS LESS TH AN THE MONETARY LIMIT SPECIFIED IN THIS INSTRUCTION '. FURTHER IN SUCH CASES THERE WILL BE NO PRESUMPTIO N THAT THE INCOME-TAX DEPARTMENT HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUES. THE INCOME-TAX DEPARTMENT SHALL NOT BE PRECLUDED FROM FILING AN APPEAL AGAINST THE DISPUTE D ISSUES IN THE CASE OF THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR IN THE CASE OF ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR IF THE TAX EFFECT EXCEEDS THE SPECIFIED MONET ARY LIMITS. 7. IN THE PAST A NUMBER OF INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WHEREBY AN ASSESSEE HAS CLAIMED RELIEF FROM THE TRIBUNAL OR THE COURT O NLY ON THE GROUND THAT THE DEPARTMENT HAS IMPLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN THE CASE OF THE ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR IN THE CASE OF ANY OTHER ASSESSE E FOR THE SAME OR ANY OTHER ASSESSMENT YEAR BY NOT FILING AN APPEAL ON THE SAME DISPUTED ISSUES. T HE DEPARTMENTAL REPRESENTATIVES/COUNSELS MUST MAKE EVERY EFFORT TO BRING TO THE NOTICE OF THE TRI BUNAL OR THE COURT THAT THE APPEAL IN SUCH CASES WAS NOT FILED OR NOT ADMITTED ONLY FOR THE REASON O F THE TAX EFFECT BEING LESS THAN THE SPECIFIED MONETARY LIMIT AND THEREFORE NO INFERENCE SHOULD BE DRAWN THAT THE DECISIONS RENDERED THEREIN WERE ACCEPTABLE TO THE DEPARTMENT. ACCORDINGLY THE Y SHOULD IMPRESS UPON THE TRIBUNAL OR THE COURT THAT SUCH CASES DO NOT HAVE ANY PRECEDENT VAL UE. AS THE EVIDENCE OF NOT FILING APPEAL DUE TO THIS INSTRUCTION MAY HAVE TO BE PRODUCED IN COURTS THE JUDICIAL FOLDERS IN THE OFFICE OF CIT MUST BE MAINTAINED IN A SYSTEMIC MANNER FOR EASY RETRIEVAL. 8. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LES S THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT. A. WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE ARE UNDER CHALLENGE OR B. WHERE BOARD'S ORDER NOTIFICATION INSTRUCTION OR C IRCULAR 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 UNDE R ARTICLE 136 OF THE CONSTITUTION BEFORE THE SUPREME COURT SHOULD IN ALL CASES BE SENT TO THE DIRECTORATE OF INCOME-TAX (LEGAL & RESEARCH) NEW DELHI AND THE DECISION TO FILE SPECIAL LEAVE PE TITION SHALL 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 INCOME-TAX FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVERNED BY RELEVANT PROVISIONS OF STATUTE AND RULE S. FURTHER FILING OF APPEAL IN CASES OF INCOME- TAX WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NO T INVOLVED SUCH AS THE CASE OF REGISTRATION OF TRU STS OR INSTITUTIONS UNDER SECTION 12A OF THE IT ACT 19 61 SHALL NOT BE GOVERNED BY THE LIMITS SPECIFIED IN PARA 3 ABOVE AND DECISION TO FILE APPEAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR CASE. 11. THIS INSTRUCTION WILL APPLY TO APPEALS FILED ON OR AFTER 09.02.2011. HOWEVER THE CASES WHERE APPEALS HAVE BEEN FILED BEFORE 09.02.2011 WILL BE G OVERNED BY THE INSTRUCTIONS ON THIS SUBJECT OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 12. THIS ISSUES UNDER SECTION 268(1) OF THE INCOME TAX ACT 1961. 4 ITA 89/K/2011 SHRI JAYANTA KUMAR LAHIRI . A.Y.05-0 6 4. ON QUERY FROM THE BENCH THE LD. DR COULD NOT PO INT OUT ANY OF THE EXCEPTIONS AS PROVIDED IN THE CIRCULAR AS UNDER: (A) THAT THIS IS A LOSS CASE HAVING TAX EFFECT MOR E THAN THE PRESCRIBED LIMIT WHICH SHOULD BE TAKEN INTO ACCOUNT (B) THAT THIS IS A COMPOSITE ORDER FOR MANY ASSESS MENT YEARS WHERE TAX EFFECT WILL BE MORE THAN THE PRESCRIBED LIMIT AS PER PARA 5 OF A BOVE INSTRUCTIONS (C) THAT THERE IS OTHER YEAR PENDING AS DISPUTED O N THE SINGULAR ISSUE (D) THAT IN THE CASE OF REVENUE WHERE CONSTITUTIO NAL VALIDITY OF THE PROVISIONS OF THE ACT OR I.T. RULES 1962 ARE UNDER CHALLENGE (E) THAT BOARDS ORDER NOTIFICATION INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES (F) THAT REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN A CCEPTED BY THE DEPARTMENT AND THE SAME IS UNDER CHALLENGE. THE LD. DR COULD NOT POINT OUT ANY OF THE EXCEPTION S AS PROVIDED ABOVE. ACCORDINGLY THIS BEING A TAX EFFECT CASE WE DISMISS THE APPEAL OF T HE REVENUE IN LIMINE WITHOUT GOING INTO MERITS AND AS UNADMITTED. 5. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. 6. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . . ! ' '' ' # # # # ! (S. V. MEHROTRA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( / / / /) )) ) DATED 28 TH SEPTEMBER 2011 '01 %23 4' JD.(SR.P.S.) . 5 6 76'8- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT ITO WARD-50(1) KOLKATA. 2 -*+ / RESPONDENT SRI JAYANTA KUMAR LAHIRI C/O M/S. AB HISEK CONSTRUCTION SHIBTALA HRIDAYPUR STATION ROAD BAR ASAT 24 PGS (N). 3 . .% ( )/ THE CIT(A) KOLKATA 4. .% / CIT KOLKATA 5 . '> % / DR KOLKATA BENCHES KOLKATA -6 / TRUE COPY .%?/ BY ORDER #3 /ASSTT. REGISTRAR .