I.T.O WD - 8(3),KOLKATA, KOLKATA vs. M/S PARASNATH CRUSHER PVT LTD, KOLKATA

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ITA 1022/KOL/2013Status: DisposedITAT Kolkata09 February 2016AY 2009-104 pages
AI SummaryDismissed

What did the Tribunal hold?

The Tribunal condoned the delay in filing the appeal. However, it dismissed the appeal in limine as it was filed contrary to the CBDT Circular No. 21/2015, which sets monetary limits for filing appeals.

What were the facts?

The Revenue filed an appeal before the ITAT with a delay of three days. The appeal was filed against an order of the CIT(A) for the assessment year 2009-10.

What were the issues?

Whether the Revenue's appeal, filed against an order where the tax effect was below the revised monetary limits prescribed by CBDT Circular No. 21/2015, should be dismissed in limine.

Which sections of the Income-tax Act were involved?

Section 143(3)

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Income Tax Appellate Tribunal, KOLKATA BENCH “A” KOLKATA

Before: Shri N.V.Vasusdevan & Shri Waseem Ahmed

आदेश /O R D E R

PER Waseem Ahmed, Accountant Member:-

1.

This appeal by the Revenue is arising out of order of Commissioner of Income Tax (Appeals)-VIII, Kolkata in appeal No.216/CIT(A)-VIII/Kol/11-12 dated 08.01.2013. Assessment was framed by ITO Ward-8(3), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 16.12.2011 for assessment year 2009-10.

ITO Wd-8(3) Kol. v. M/s Parasnath Crusher Pvt. Ltd. Page 2 Miss. Varsha Jalan, Ld. Authorized Representative appearing on behalf of assessee and Shri Rajendra Prasad, Ld. Departmental Representative appearing on behalf of Revenue.

2.

At the threshold, it is noted that there is a smallness delay of three days in filing the appeal by the Revenue. The Revenue has filed condonation petition in this regard stated the reasons that the delay is occurred due to unavoidable circumstances. Ld. AR for assessee has raised no objection. In our considered opinion, due to smallness of delay is hereby condoned and proceed to hearing this appeal.

3.

Of late, the CBDT has issued Circular No. 21/2015, dated 10th December, 2015, whereby the monetary limits for filing of appeals by the Department before Income Tax Appellate Tribunal and Hon'ble High Courts and SLP before Hon'ble Supreme Court have been increased as measure for reducing Litigation. The revised monetary limits laid down in para-3 of this Circular and the manner of computing tax effect as laid down in para-4 of this Circular are as follows: “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 in Income-tax matters Monetary Limit (in Rs)

1.

Before Appellate Tribunal 10,00,000/- 2. Before High Court 20,00,000/- 3. Before Supreme Court 25,00,000/-

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"). However the tax will ITO Wd-8(3) Kol. v. M/s Parasnath Crusher Pvt. Ltd. Page 3 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.”

4. In para-10 of the said circular it has been further been clarified that the revised monetary limits will apply retrospectively. The relevant para-10 of the Circular reads thus: “10. This instruction will apply retrospectively to pending appeals and appeals to be filed henceforth in High Courts/ Tribunals. Pending appeals below the specified tax limits in para 3 above may be withdrawn/ not pressed. Appeals before the Supreme Court will be governed by the instructions on this subject, operative at the time when such appeal was filed.”

4.

1 In both the present case, the tax effect in this appeal by the Revenue is less than Rs.10,00,000/-. Though both appeals had been filed by the Revenue on 15.06.2011 and were within the monetary limit in the form of tax effect for filing appeals before Tribunal, in view of para-10 of the Circular of CBDT, even such appeals will be governed by the new monetary limits laid down in the CBDT Circular No.12/2015 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 ITO Wd-8(3) Kol. v. M/s Parasnath Crusher Pvt. Ltd. Page 4 of the statute. The appeal under consideration has certainly been filed contrary to the Circular issued by the CBDT Circular No.21/2015.

6.

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

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