The ITO, Ward-1, Gudivada v. Smt Manthi Lakshmi, Gudivada

MA 8/VIZ/2011 | 1994-1995
Pronouncement Date: 08-03-2011 | Result: Dismissed

Appeal Details

RSA Number 825324 RSA 2011
Bench Visakhapatnam
Appeal Number MA 8/VIZ/2011
Duration Of Justice 16 day(s)
Appellant The ITO, Ward-1, Gudivada
Respondent Smt Manthi Lakshmi, Gudivada
Appeal Type Miscellaneous Application
Pronouncement Date 08-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 08-03-2011
Assessment Year 1994-1995
Appeal Filed On 21-02-2011
Judgment Text
MA 8&9/V/11 M. LAKSHMI GUDIVADA PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER M. A . NO. 8 / VIZAG/20 1 1 (ARISING OUT OF ITA NO.12/VIZAG/2010) ASSESSME NT YEAR: 1994 - 95 ITO WARD - 1 GUDIVADA VS. SMT. MANTHI LAKSHMI GUDIVADA (APPELLANT) (RESPONDENT) GIR NO.L - 885 M.A. NO.9/VIZAG/2011 (ARISING OUT OF ITA NO.14/VIZAG/2010) ASSESSMENT YEAR: 1995 - 96 ITO WARD - 1 GUDIVADA VS. SMT. PYDI SATYAVATHI L/R OF LATE PYDI SEETARAMAIAH GUDIVADA (APPELLANT) (RESPONDENT) GIR NO.V - 1116 APPELLANT BY: SHRI D. MANOJ KUMAR DR RESPONDENT BY: SHRI G.V.N. HARI CA ORDER PER SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER : THESE MISCELLANEOUS APPLICATIONS ARE PREFERRED BY THE REVENUE AGAINST THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 22.12. 2010 IN ITA NO.12 TO 14 OF 2010 WITH THE SUBMISSION THAT THE TRIBUNAL HAS DISM ISSED THESE APPEALS OF THE REVENUE FOLLOWING THE JUDGEMENT OF THE JURISDIC TIONAL HIGH COURT IN THE CASE OF CIT VS. A. RAJENDRA PRASAD 229 ITR 227 FOR THE REASONS THAT MONETARY LIMITS FOR FILING THESE APPEALS INVOLVED I N THESE CASES IS BELOW RS.2 LAKHS. THEREFORE THESE APPEALS ARE NOT MAINTAINAB LE. BUT THESE APPEALS WERE FILED ON ACCOUNT OF AUDIT OBJECTIONS WHICH HAV E BEEN ACCEPTED BY THE MA 8&9/V/11 M. LAKSHMI GUDIVADA PAGE 2 OF 4 DEPARTMENT. APPEALS FILED ON ACCOUNT OF AUDIT OBJE CTIONS FIND PLACE AT CLAUSE 3 IN THE INSTRUCTIONS ISSUED BY THE CBDT FOR NOT FI LING AN APPEAL IF THE TAX LIMIT IS BELOW THE PRESCRIBED MONETARY LIMIT. SINCE THES E APPEALS WERE FILED ON THE BASIS OF THE AUDIT OBJECTIONS WHICH WERE ACCEPTED B Y THE DEPARTMENT THESE APPEALS ARE MAINTAINABLE AS IT FALLS WITHIN THE EXC EPTIONAL CLAUSE OF THE INSTRUCTIONS. BUT THE TRIBUNAL DID NOT TAKE A COGN IZANCE OF THESE FACTS AND HAS DISMISSED THESE APPEALS FOR THE REASONS THAT TA X EFFECT INVOLVED IN THESE APPEALS ARE BELOW THE PRESCRIBED LIMIT. 2. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND HAS SUBMITTED THAT IF THE APPEALS FALLS WITHIN ONE OF THE EXCEPTIONAL CLAUSE THE REVENUE IS REQUIRED TO RAISE A SPECIFIC GROUND IN THE MEMO OF APPEAL BUT THE REVENUE HAS NOT DONE SO. THE TRIBUNAL HAS RIGHTLY DISMISSE D THESE APPEALS FOLLOWING THE JUDGEMENT OF THE JURISDICTIONAL HIGH COURT IN T HE CASE OF CIT VS. RAJENDRA PRASAD AND OTHERS 299 ITR 227 (AP). 3. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CA REFUL PERUSAL OF THIS ORDER OF THE TRIBUNAL VIS--VIS THE MISCELLANEOUS A PPLICATION WE FIND THAT IN THE MEMO OF APPEAL REVENUE HAS NOT RAISED A SPECIFI C GROUND THAT THIS APPEAL IS BEING FILED ON ACCOUNT OF AUDIT OBJECTIONS. THE REFORE IT IS MAINTAINABLE UNDER THE EXCEPTIONAL CLAUSE OF THE INSTRUCTIONS. IN THE MEMO OF APPEAL GENERAL GROUNDS ARE RAISED ASSAILING THE ORDER OF T HE CIT(A) ON MERIT. MOREOVER DURING THE COURSE OF THE HEARING OF THE A PPEALS IT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THESE APPEALS AR E FILED ON ACCOUNT OF AUDIT OBJECTIONS AS SUCH THEY FALLS WITHIN THE EXCEPTIO NAL CLAUSE. THE TRIBUNAL RELYING UPON THE JUDGEMENT OF THE JURISDICTIONAL HI GH COURT IN THE CASE OF CIT VS. RAJENDRA PRASAD (SUPRA) HAS DISMISSED THESE APP EALS BEING NOT MAINTAINABLE AS THE TAX EFFECT INVOLVED THEREIN IS BELOW THE PRESCRIBED MONETARY LIMIT OF RS.2 LAKHS. WE HAVE ALSO EXAMINE D THE JUDGEMENT OF THE JURISDICTIONAL HIGH COURT WHICH IS BINDING UPON US AND WE FIND THAT IN THAT MA 8&9/V/11 M. LAKSHMI GUDIVADA PAGE 3 OF 4 JUDGEMENT THEIR LORDSHIP OF THE HIGH COURT HAVE CAT EGORICALLY HELD THAT THE REVENUES APPEAL IN WHICH TAX EFFECT IS BELOW THE P RESCRIBED MONETARY LIMIT IF FILED IT WOULD BE DISMISSED BEING NOT MAINTAINABLE. THEIR LORDSHIP HAVE ALSO FURTHER CLARIFIED THAT IF THE REVENUES APPEALS FAL LS WITHIN ONE OF THE EXCEPTIONAL CLAUSE REVENUE IS REQUIRED TO TAX SPEC IFIC GROUND IN THE MEMO OF APPEAL THEN THE TRIBUNAL OR THE APPELLATE AUTHORITY CAN ENTERTAIN THE APPEAL. BUT IN THE ABSENCE OF A SPECIFIC GROUND THAT ITS AP PEAL FALLS WITHIN THE EXCEPTIONAL CLAUSE THE APPEAL FILED BY THE REVENUE HAS TO BE DISMISSED BEING NOT MAINTAINABLE. THE RELEVANT OBSERVATIONS OF THE IR LORDSHIP ARE EXTRACTED HEREUNDER: IF AN INTERPRETATION AS PLEADED BY THE REVENUE IS P LACED ON THE CIRCULARS THEN THE DEPARTMENT COULD USE THESE INST RUCTIONS ARBITRARILY WITHOUT ANY REASON. THEY CAN FILE AN APPEAL IN MATTERS IN WHICH THEY WERE INSTRUCTED BY THE BOARD NOT TO FILE APPEALS AND IN CERTAIN MAT TERS THEY WOULD NOT FILE APPEAL ON THE GROUND THAT THE STATUTORY POWER COULD NOT BE LIMITED BY THE CIRCULAR AND IT WILL GIVE RISE TO ARBITRARINESS WH ICH OBVIOUSLY COULD NOT BE LIMITED BY THE CIRCULAR AND IT WILL GIVE RISE TO AR BITRARINESS WHICH OBVIOUSLY COULD NOT BE THE PURPOSE OF THE CIRCULAR. THE SELE CTION OF THE CASES IN WHICH APPEALS SHOULD BE FILED AND CASES IN WHICH APPEALS SHOULD NOT BE FILED CANNOT BE LEFT TO THE DISCRETION OF THE CONCERNED A UTHORITY WITHOUT ANY GUIDELINES WHATSOEVER. THERE IS NO MATERIAL BEFORE THE COURT AND NO MATERIAL WAS PLACED EVEN BEFORE THE TRIBUNAL TO COME TO A CO NCLUSION THAT THE CIRCULARS WHICH HAVE BEEN MENTIONED AS `CIRCULARS BY THE BOARD ITSELF WERE NOT CIRCULARS UNDER S. 119. THE CIRCULARS IN QUEST ION ARE STATUTORY IN NATURE AND ARE ISSUED BY THE BOARD IN EXERCISE OF POWERS UNDER S. 119. THE FIRST CONTENTION OF SENIOR COUNSEL FOR REVENUE THAT THE C IRCULARS WERE NOT ENFORCEABLE AS THEY WERE NOT ISSUED UNDER S. 119 AN D EVEN IF ISSUED UNDER S. 119 COULD NOT TAKE AWAY THE POWER OF THE DEPARTMEN T TO FILE AN APPEAL CREATED UNDER THE ACT CANNOT BE ACCEPTED. THE SEC OND CONTENTION IS THAT THE CIRCULARS CREATE AN EXCEPTION AND THIS ASPECT W AS NOT LOOKED INTO BY THE TRIBUNAL. ALL THESE EXCEPTIONS WHICH HAVE BEEN CRE ATED IN THESE CIRCULARS REQUIRE CONSIDERATION BY THE DEPARTMENT WITH REFERE NCE TO EACH CASE AND AFTER CONSIDERATION THEY SHOULD COME TO A CONCLUSI ON THAT THOUGH THE CASE WAS FALLING UNDER THE MONETARY LIMITS IT WAS ALSO COVERED BY AN EXCEPTION. NO SUCH EXERCISE APPEARS TO HAVE BEEN DONE AND THER EFORE THIS ARGUMENT WOULD NOT BE AVAILABLE AT THIS STAGE TO THE DEPARTM ENT. EVEN SUCH AN EXERCISE WAS NOT MADE AT THE TRIBUNAL. THEREFORE THESE APPEALS DESERVE TO BE DISMISSED AND ARE ACCORDINGLY DISMISSED. BUT IN ORDER TO AVOID ANY MA 8&9/V/11 M. LAKSHMI GUDIVADA PAGE 4 OF 4 CONFUSION IT IS LAID DOWN THAT IN CASE THE DEPARTM ENT FINDS A CERTAIN MATTER TO BE AGITATED BY WAY OF AN APPEAL ALTHOUGH IT FALL S WITHIN THE MONETARY LIMITS OF THE CIRCULARS THE DEPARTMENT SHOULD CLEARLY PLE AD IN THE MEMO OF APPEAL ITSELF THAT THE APPEAL FALLS UNDER THE EXCEPTIONS. IN THE ABSENCE OF SUCH A PLEADING IN THE MEMO OF APPEAL NORMALLY APPEAL SHO ULD NOT BE ENTERTAINED. 4. WE THEREFORE OF THE VIEW THAT THE TRIBUNAL IN T HE INSTANT CASES HAVE DISMISSED THESE APPEALS FOLLOWING THE AFORESAID JUD GEMENT OF THE HIGH COURT. THEREFORE WE FIND NO ERROR IN THE ORDER OF THE TRI BUNAL. ACCORDINGLY WE DISMISS THE MISCELLANEOUS APPLICATION OF THE REVENUE. PRONOUNCED ACCORDINGLY ON 8.3.2011. SD/ - SD/ - (B R BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM DATED: 8 TH MARCH 2011. COPY TO 1 ITO WARD - 1 GUDIVADA 2 SMT. M. LAKSHMI DR.NO.13 - 168 PATIMEEDA GUDIVADA 3 SMT. PYDI SATYAVATHI LR OF LATE SRI PYDI SEETHARAM AIAH D.NO.5 - 131 TILAK ROAD GUDIVADA 3 CIT VIJAYAWADA 4 CIT(A) VIJAYAWADA 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM