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Income Tax Appellate Tribunal, ‘D’ BENCH: CHENNAI
Before: SHRI GEORGE MATHAN & SHRI INTURI RAMA RAO
आदेश / O R D E R
PER GEORGE MATHAN, JUDICIAL MEMBER:
This is an appeal filed by the Revenue against the Order of the Commissioner of Income Tax (Appeals)-6, Chennai, in ITA No.36/C.I.T(A)- 6/2007-08 dated 20.09.2017 for assessment year 2000-01.
Mr.M.S.Nethrapal represented on behalf of the Revenue and Mr.A.Arjunraj represented on behalf of the assessee.
3. The appeal filed by the Revenue is delayed by three days. The Revenue has not filed Affidavit in its proper form. The Revenue had been asked to file the affidavit in Stamp Paper, but the affidavit has been filed by Shri R.Bhoopathi, Deputy the Commissioner of Income Tax, Corporate Range-2(2), Chennai-34 on a plain paper.
An Affidavit is a declaration of facts made in writing and sworn before a person having the authority to administer oath. All Affidavits are verified statements and printed on Stamp Papers of different denominations. According to the Indian Laws, an Affidavit can be used to prove a fact in a court of law provided the Court orders it.
4.1 Further, Rule-10 of the Income Tax Appellate Tribunal Rules, 1963 provides for filing of Affidavits wherein it is specifically mentioned that:
“Where a fact which cannot be borne out by, or is contrary to, the record is alleged, it shall be stated clearly and concisely and supported by a duly sworn affidavit.”
4.2 Moreover, since affidavits are not included in the definition of “Evidence” in the Indian Evidence Act, they can be used as evidence only when the court finds it reasonable to invoke the provisions of order-19 of the Civil Procedure Code. This provision is however, subject to the right of the opposite party to produce the deponent for cross verification.
4.3 Furthermore, Affidavit on Stamp Papers are on “Non Judicial Stamp Paper”, which are ADMINISTERED on oath before a Notary appointed by the State Government, and stamp duty are paid as per Stamp Act. The second category of affidavits, which are ADMINISTERED on oath before oath Commissioner, who are appointed by the High Court, and it is written on plain paper and stamp duty are exempted by the Stamp Act, and if duty is imposed for stamp duty in Affidavits to be used in the court in judicial functions adhesive court fees are paid.
In the present case, the affidavit filed by Shri R.Bhoopathi is on a plain paper neither Notarized, nor ADMINISTERED on oath, nor the necessary adhesive court fees are paid. This being so, the affidavit filed is neither an affidavit for the purpose of condoning the delay nor is an affidavit as per the requirements for the purpose under Rule-10 of the Income Tax Appellate Tribunal Rules, 1963. Effectively what has been done is that under the guise of an affidavit, the Officer has only filed a letter seeking condonation of delay, which is not permissible under any of the provisions of the law, nor Rule-10 of the Income Tax Appellate Tribunal Rules, 1963. Consequently, the appeal filed by the Revenue stands dismissed for defects uncured by applying the principles laid down by the Hon’ble Jurisdictional High Court in the case of Prasad Productions P. Ltd. Vs. Income-Tax Appellate Tribunal [1997] 226 ITR 778 (Mad).
Before us, the learned Counsel for the Revenue and the Assessee fairly conceded that the tax effect involved in this appeal does not exceed Rs.50 /- lakhs.
Vide CBDT circular No.17/2019 in F.No.279/Misc.142/2007-ITJ(Pt) dated 8th August, 2019, the income tax department has further liberalized its policy for not filing appeals against the decisions of the appellate authorities in favour of the taxpayers, wherein tax involved is below certain threshold limits, and announced its policy decision not to file, or press, the appeals, before this Tribunal, against the appellate orders favourable to the assessee in the cases in which overall tax effect, excluding interest except when interest itself is in dispute, is Rs 50 /- lakhs or less.
In view of the above factual background and the concession by this CBDT circular, this appeal filed by the Revenue must be dismissed as withdrawn.
This circular, only enhances the monetary limits and gives further relaxation. The old circular, beyond any dispute or controversy, categorically applied to the pending appeals as on the date of issuance of circular.
The circular dated 8th August 2019 is not a standalone circular. It is to be read in conjunction with the CBDT circular No. 3/2018 (and subsequent amendment thereto), and all it does is to replace paragraph nos. 3 and 5 of the said circular. This is evident from the following extracts from the circular dated 8th August 2019:
“2. As a step towards further management of litigation. it has been decided by the Board that monetary limits for filing of appeals in income-tax cases be enhanced further through amendment in Para 3 of the Circular mentioned above and accordingly, the table for monetary limits specified in Para 3 of the Circular shall read as follows: Sl. Appeals/SLPs in Income-tax Monetary No matters Limit (Rs.)
1 Before Appellate Tribunal 50,00,000 2 Before High Court 1,00,00,000 3 Before Supreme Court 2,00,00,000
Further, with a view to provide parity in filing of appeals in scenarios where separate order is passed by higher appellate authorities for each assessment year vis-a-vis where composite order for more than one assessment years is passed. para 5 of the circular is substituted by the following para: “5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of everyassessee. If in the case of an assessee, the disputed issues arise in more than one assessment year, 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 monetary limit specified in para-3. Further, even in the case of composite order of any High Court or appellate authority which involves more than one assessment year and common issues in more than one assessment year no appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. In case where a composite order/ judgement involves more than one assessee, each assessee shall be dealt with separately”
4. The said modifications shall come into effect from the date of issue of this Circular.”
Clearly, all other portions of the circular no. 3 of 2018 (supra) have remained intact. The portion which has remained intact includes paragraph 13 of the aforesaid circular which is as follows:
“13. This Circular will apply to SLPs/ appeals/ cross objections/ references to be filed henceforth in SC/HCs/Tribunal and it shall also apply retrospectively to pending SLPs/ appeals/ cross objections/references. Pending appeals below the specified tax limits in pare 3 above may be withdrawn/ not pressed.”
The Hon’ble Supreme Court in the case of The Commissioner of Income Tax-5,New Delhi Vs. Keshav Power Ltd., in SLP No.21497/2019 dated 16.08.2019 reported in 2019(8)TMI 811(SC) has also applied the Circular No.17/2019 dated 08.08.2019 has dismissed the appeal holding as follows:
“Since the tax effect involved in the matter is less than Rs.2/- crores, going by the latest circular issued by the CBDT, we see no reason to interfere in this matter. The Special Leave Petition is dismissed, leaving all the questions of law open”.
Learned Commissioner (DR) submits liberty may kindly be given to point out, upon necessary further verifications, and to seek recall the dismissal of appeal and restoration of the appeal in the case (i) in which it can be demonstrated that the appeals are covered by the exceptions, and (ii) which are inadvertently included in this bunch of appeals, wherein the tax effect, in terms of the CBDT circular (supra), exceeds Rs 50,00,000.
None opposes this prayer; we accept the same. We make it clear that the appellants shall be at liberty to point out the case which is wrongly included in the appeal so summarily dismissed, either owing to wrong computation of tax effect or owning to such cases being covered by the permissible exceptions- or for any other reason, and we will take appropriate remedial steps in this regard.
In the circumstances, respectfully following the principles laid down by the Hon”ble Supreme Court in the case of the Commissioner of Income Tax-5,New Delhi Vs. Keshav Power Ltd., referred to supra and in the light of the above discussions, the appeal filed by the Revenue is found to be non-maintainable.
In the circumstances, on both the grounds discussed above, the appeal filed by the Revenue is dismissed.
In the result, the appeal filed by the Revenue stands dismissed as defects uncured, and also as non-maintainable as per CBDT circular No.17/2019 dated 8th August, 2019.
Order pronounced in the open Court after conclusion of hearing on the 21st August, 2019 in Chennai.