PRINCIPAL COMMISSIOER OF INCOME TAX-2, vs. M/S KUNJ INFRASTRUCTURE PVT LTD
What did the High Court hold?
The High Court held that the Income Tax Appellate Tribunal erred in dismissing the Revenue's appeal on the ground of low tax effect without considering the exceptions provided in the CBDT Circulars. The Court noted that the case was reopened based on a revenue audit objection, which is explicitly mentioned as an exception in Clause 10(c) of CBDT Circular No. 3/2018. This circular mandates that adverse judgments relating to such issues should be contested on merits, irrespective of the tax effect. Therefore, the ITAT should have decided the appeal on its merits. The High Court quashed and set aside the impugned order of the ITAT and remitted the matter back to the ITAT for fresh consideration on merits. The question of law was answered in favour of the Revenue and against the assessee.
What were the facts?
The Revenue (Principal Commissioner of Income Tax-2) appealed to the High Court against an order of the Income Tax Appellate Tribunal (ITAT) for Assessment Year 2010-11. The ITAT had dismissed the Revenue's appeal against the assessee (M/s Kunj Infrastructure Pvt Ltd) on the ground of low tax effect, citing CBDT Circular No. 21/2015. The ITAT's decision was based on the fact that the net tax effect was less than Rs. 10 lacs. The Revenue's original appeal to the ITAT challenged an order by the CIT(A) which had deleted an addition of Rs. 4,35,000 made by the Assessing Officer on account of disallowance of cash payment of legal fees under Section 40A(3) of the Income Tax Act, 1961.
What were the issues?
1. Whether the Appellate Tribunal erred in law and on facts in dismissing the appeal on the ground of low tax effect, despite the case falling under the exceptions laid out in the CBDT's Circular? Assessee's contentions: Not recorded in the judgment. Revenue's contentions: The Revenue argued that the case was reopened based on a revenue audit objection, which is an exception to the low tax effect rule as per CBDT Circular No. 3/2018. Therefore, the ITAT ought to have decided the appeal on merits rather than dismissing it solely on the ground of low tax effect.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
The respondent – assessee although served with the notice issued C/TAXAP/1314/2018 JUDGMENT by this Court, yet has chosen not to appear before this Court either in person or through an advocate and oppose this tax appeal at the instance of the Revenue.
This tax appeal under Section 260A of the Income Tax Act, 1961 [for short 'the Act, 1961'] is at the instance of the Revenue and is directed against the order passed by the Income Tax Appellate Tribunal in the ITA No.2891/AHD/2016, dated 11/05/2018 for the A.Y 201011. 3. The Revenue has proposed the following substantial question of law for the consideration of this Court: “Whether the Appellate Tribunal has erred in law and on facts in dismissing the appeal on the ground of low tax effect despite the fact that case falls under the exceptions laid out in the CBDT's Circular?”
The impugned order passed by the Income Tax Appellate Tribunal reads as follow: “This Revenue's appeal for A.Y. 201011, arises from order of the CIT(A)2, Ahmedabad dated 22082016, in proceedings under section 143(3) r.w.s. Of the Income Tax Act, 1961; in short “the Act”.
The Revenue's sole substantive ground challenges the lower appellate order deleting the addition made on account of disallowance of cash payment of Rs.4,35,000/ toward legal fees invoking provisions of section 40A(3) of the Act. There is no dispute that the net tax effect in the instant appeal is less than Rs.10 lacs. We find that the Central Board of Direct Taxes; hereafter the 'Board' has issued the circular no.21/2015 dated 10122015 clearly envisaging therein that department's pending appeals before the tribunal/ high courts are to be withdrawn/not pressed as per the above stated circular. The same has been declared to be having retrospective effect in other words. We take into consideration the above stated Board's circular and dismiss the instant appeal accordingly.
This Revenue's appeal is dismissed as having low tax effect.” C/TAXAP/1314/2018 JUDGMENT
Thus, it appears that the Tribunal relying upon the Circular No.21/2015 dated 10th December 2015 dismissed the appeal on the ground of low tax effect without going into the merits of the matter.
Mrs. Mauna Bhatt, the learned senior standing counsel appearing for the Revenue pointed out that the case was reopened on the basis of revenue audit objection and in such circumstances, the same would be covered under the exception mentioned in the Circular No.3/2018 of the C.B.D.T.
The Circular No.3/2018 issued by the Government of India, Ministry of Finance dated 11th July, 2018 is with respect to the revision of monetary limits for filing of the appeals by the department in the Income Tax Appellate Tribunal, High Courts and appeals before the Supreme Court. The Clause10 of the Circular reads thus: “10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less 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 is under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets/ bank accounts.”
In such circumstances referred to above, the Appellate Tribunal ought to have decided the issue on merits rather than dismissing the C/TAXAP/1314/2018 JUDGMENT appeal on the ground of low tax effect.
This appeal succeeds and is hereby allowed. The impugned order passed by the Appellate Tribunal is quashed and set aside. The question of law is answered in favour of the Revenue and against the assessee. The matter is remitted to the Income Tax Appellate Tribunal for fresh consideration on merits. (J. B. PARDIWALA, J) (A. C. RAO, J) aruna
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