ACIT, Trichy v. Shri R.Viswanathan, Trichy

MA 155/CHNY/2011 | 2004-2005
Pronouncement Date: 23-09-2011 | Result: Dismissed

Appeal Details

RSA Number 15521724 RSA 2011
Assessee PAN AAEPV8545M
Bench Chennai
Appeal Number MA 155/CHNY/2011
Duration Of Justice 2 month(s) 5 day(s)
Appellant ACIT, Trichy
Respondent Shri R.Viswanathan, Trichy
Appeal Type Miscellaneous Application
Pronouncement Date 23-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 23-09-2011
Date Of Final Hearing 23-09-2011
Next Hearing Date 23-09-2011
Assessment Year 2004-2005
Appeal Filed On 18-07-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI BEFORE SHRI ABRAHAM P. GEORGE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN JUDICIAL MEMBER .. M.P. NO. 155/MDS/2011 (IN I.T.A. NO. 30/MDS/2011) ASSESSMENT YEAR : 2004-05 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-II O/O THE JOINT COMMISSIONER OF INCOME TAX RANGE-II TIRUCHIRAPALLI. (PETITIONER) V. SHRI R. VISWANATHAN 35 TANJORE ROAD TIRUCHIRAPALLI 620 008. PAN : AAEPV8545M (RESPONDENT) PETITIONER BY : SHRI SANJAY DESHMUKH SR. D.R. RESPONDENT BY : NONE DATE OF HEARING : 23.09.2011 DATE OF PRONOUNCEMENT: 23.09.2011 O R D E R PER ABRAHAM P. GEORGE ACCOUNTANT MEMBER : THROUGH THIS MISCELLANEOUS PETITION FILED BY THE R EVENUE ITS GRIEVANCE IS THAT THE TAX EFFECT ON THE DISPUTES IN VOLVED WAS MORE THAN ` 3 LAKHS AND THIS TRIBUNAL HAD APPLIED CIRCULAR NO. 5 OF 2008 M.P. NO. 155/MDS/11 2 DATED 15.5.2008 OF CBDT TO THE CASE WHILE DISMISSIN G THE APPEAL FILED BY IT. 2. WE HAVE GONE THROUGH THE ORDER AND HEARD THE RIV AL CONTENTIONS. TOTAL OF THE ADDITIONS WHICH WERE DEL ETED BY LD. CIT(APPEALS) IN THIS CASE WAS ` 9 67 500/-. THIS TRIBUNAL BASED ON A FINDING THAT THE TAX EFFECT WAS LESS THAN ` 3 LAKHS APPLYING CIRCULAR NO.5 OF 2008 DATED 15.5.2008 HAD DISMISSED THE APP EAL OF THE REVENUE. NOW AS PER LEARNED D.R. THE TAX EFFECT OF ` 9 67 500/- WOULD BE ` 3 19 277/-. ACCORDING TO HIM THIS AMOUNT WAS ARR IVED AT BASED ON 30% TAX SLAB AGGREGATED WITH SURCHARGE OF 10% VIZ. ` 2 90 250/- AND ` 29 025/- RESPECTIVELY. 3. WE FIND THAT IN CLAUSE (4) OF INSTRUCTION NO.5 O F 2008 DATED 15 TH MAY 2008 OF CBDT TAX EFFECT IS DEFINED AS UNDER:- 4. FOR THIS PURPOSE TAX EFFECT MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND TH E TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BE EN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAI NST WHICH APPEAL IS INTENDED TO BE FILED (HEREAFTER REFERRED TO AS DISPUTED ISSUES). HOWEVER THE TAX WILL NOT INCLUDE ANY INT EREST THEREON. SIMILARLY IN LOSS CASES NOTIONAL TAX EFFECT SHOULD BE TAKEN INTO ACCOUNT. IN THE CASE OF PENALTY ORDERS THE TAX EFFE CT WILL MEAN M.P. NO. 155/MDS/11 3 QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. NOTHING HAS BEEN MENTIONED IN THE ABOVE DEFINITION TO SHOW THAT TAX WILL INCLUDE SURCHARGE FOR THE PURPOSE OF APPLYING THE SAID CIRCULAR. NOW IF WE LOOK AT THE DEFINITION OF TAX AS PER SU B-SECTION (43) OF SECTION 2 OF INCOME-TAX ACT 1961 IT RUNS AS UNDER :- (43) TAX IN RELATION TO THE ASSESSMENT YEAR COMMEN CING ON THE 1 ST DAY OF APRIL 1965 AND ANY SUBSEQUENT ASSESSMENT YEA R MEANS INCOME-TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT AND IN RELATION TO ANY OTHER ASSESSMENT YEAR INCOME-TAX AND SUPER-TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT PRIOR T O THE AFORESAID DATE [AND IN RELATION TO THE ASSESSMENT YE AR COMMENCING ON THE 1 ST DAY OF APRIL 2006 AND ANY SUBSEQUENT ASSESSMENT YEAR INCLUDES THE FRINGE BENEFIT TAX PAYAB LE UNDER SECTION 115WA] IT IS CLEAR THAT TAX AS PER THE ABOVE DEFINITION WOULD INCLUDE SUPER- TAX AND ALSO FRINGE BENEFIT TAX BUT NOT SURCHARGE. ADMITTEDLY HERE THE TAX WAS ONLY ` 2 90 250/- WHICH IS BELOW THE LIMIT OF ` 3 LAKHS PRESCRIBED IN THE CIRCULAR FOR FILING APPEALS BEFOR E THIS TRIBUNAL. RESULTANTLY WE DO NOT FIND ANY MISTAKE IN THE ORDE R OF THIS TRIBUNAL MUCH LESS ANY MISTAKE APPARENT ON RECORD. M.P. NO. 155/MDS/11 4 4. IN THE RESULT THE MISCELLANEOUS PETITION FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON THE TWENTY THIRD DAY OF SEPTEMBER 2011. SD/- SD/- (GEORGE MATHAN) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI DATED THE 23 RD SEPTEMBER 2011. KRI. COPY TO: (1) PETITIONER (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE