ACIT, CIRCLE-49, KOLKATA, KOLKATA vs. DEO KUMAR SARAF, KOLKATA

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ITA 1590/KOL/2016Status: DisposedITAT Kolkata05 September 2018AY 2011-123 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that the appeal filed by the Revenue was not maintainable as it was against the policy decision of the Department due to the low tax effect. CBDT circulars are binding on the Revenue.

What were the facts?

The Revenue filed an appeal before the ITAT against an order of the CIT(A). The tax effect in the appeal was less than Rs. 20 lacs. The appeal was filed after the issuance of CBDT Circular No. 3/2018, which set a monetary limit for filing appeals.

What were the issues?

The primary issue was the maintainability of the Revenue's appeal before the ITAT in light of the monetary limits prescribed by the CBDT circular.

Which sections of the Income-tax Act were involved?

CBDT Circular No.3/2018

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, “A” BENCH: KOLKATA

Before: Shri A. T. Varkey, JM & Dr. A. L. Saini, AM]

Hearing: 19.07.2018Pronounced: 05.09.2018

This appeal preferred by the revenue is against the order of the Ld. CIT(A)-15, Kolkata dated 31.05.2016 for AY 2011-12.

2.

At the outset itself, the Ld. AR has brought to our attention to the fact that the revenue has preferred this appeal which has tax effect of less than Rs. 20 lacs, therefore, the revenue’s appeal is not maintainable in the light of the CBDT Circular No.3/2018 dated 11.07.2018 wherein CBDT has directed as under: “3 . Henceforth, appeals/ SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder: Sl. No. Appeals/SLP’s in Income-tax matters Monetary Limit (in Rs) 1. Before Appellate Tribunal 20,00,000/- 2. Before High Court 50,00,000/- 3. Before Supreme Court 1,00,00,000/- 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 such total income been reduced by the amount of income in respect of the issues against which appeal is intended to be filed (hereinafter referred to as 'disputed issues’). Further, 'tax effect' shall be tax including applicable surcharge and cess. However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute. In case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional 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.”

3.

In para-13 of the said circular it has further been clarified that the revised monetary limits will apply retrospectively. The relevant para-13 of the Circular reads thus: “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 para 3 above may be withdrawn/not pressed.

4.

In the present case, the tax effect in this appeal by the revenue is less than Rs.20,00,000/-. Though this appeal had been filed by the revenue on 05.08.2016 and was within the monetary limit in the form of tax effect for filing appeal before Tribunal, in view of para-13 of the Circular of CBDT, even such appeal will be governed by the new monetary limits laid down in the CBDT Circular No.3/2018 referred to above.

5.

It is a settled law that the Circulars issued by CBDT are binding on the Revenue. This position was confirmed by the Apex Court in the case of Commissioner of Customs vs Indian Oil Corporation Ltd. reported in 267 ITR 272 wherein their Lordships examined the earlier decisions of the Apex Court with regard to binding nature of the Circular and laid down that when a circular issued by the Board remains in operation then the Revenue is bound by it and cannot be allowed to plead that it is not valid or that it is contrary to the terms of the statute.

5.1. In the event, the Revenue finds at a later point of time that the tax effect in the appeal is more than Rs.20 lakhs or despite low tax effect the appeal of the revenue is maintainable, the revenue is at liberty to move this Tribunal for recalling of this order.

6.

In view of the above, we hold that the appeal filed by the Department, against the impugned order of the Ld. CIT(A), is contrary to the policy decision of the Department and as such the appeal filed by the Department is dismissed in limine.

7.

In the result, the appeal by the Revenue is dismissed.

Order pronounced in the open court on 5th September, 2018. Sd/- Sd/- (Dr. A. L. Saini) (A. T. Varkey) Accountant Member Judicial Member Dated: 5th September, 2018 Jd.(Sr.P.S.) Copy of the order forwarded to: 1 Appellant – ACIT, Circle-49, Kolkata. 2 Respondent – Shri Deo Kumar Saraf, AL-222, Salt Lake City, Kolkjata-700 091. 3 CIT(A)-15, Kolkata. (sent through e-mail) CIT , Kolkata 4 DR, Kolkata Benches, Kolkata (sent through e-mail) 5

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