ACIT, Circle - 24, Kolkata, Kolkata v. Smt. Mukti Chatterjee & Shri Dipankar Banerjee, North 24 Parganas

ITA 432/KOL/2010 | 1998-1999
Pronouncement Date: 28-05-2010

Appeal Details

RSA Number 43223514 RSA 2010
Assessee PAN SINCE1987H
Bench Kolkata
Appeal Number ITA 432/KOL/2010
Duration Of Justice 3 month(s) 1 day(s)
Appellant ACIT, Circle - 24, Kolkata, Kolkata
Respondent Smt. Mukti Chatterjee & Shri Dipankar Banerjee, North 24 Parganas
Appeal Type Income Tax Appeal
Pronouncement Date 28-05-2010
Appeal Filed By Department
Bench Allotted A
Tribunal Order Date 28-05-2010
Date Of Final Hearing 20-05-2010
Next Hearing Date 20-05-2010
Assessment Year 1998-1999
Appeal Filed On 26-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI C. D. RAO AM] I.T.A. NO.432/KOL/2010 ASSESSMENT YEAR: 1998-99 ASSISTANT COMMISSIONER OF INCOME-TAX -VS- SMT. MUKTI CHATTERJEE & SR DIPANKAR CIRCLE-24 BANERJEE L/R OF LATE ANIMA BANERJEE (APPELLANT) (RESPONDENT) APPELLANT BY : SRI P. KOLHE RESPONDENT BY : SRI T. K. CHAKRABORTY O R D E R PER D. K. TYAGI JM: THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A) DATED 30.11.2009 FOR THE ASSESSMENT YEAR 19 98-99 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT T HE TAX EFFECT IS LESS THAN RS. 2 LACS AND IN SUPPORT OF IT HE HAS FILED A CHART WHIC H IS REPRODUCED AS UNDER : TOTAL INCOME ASSESSED BY THE LD. AO RS.8 49 500/- RS.2 29 850/- LESS : RETURN INCOME FILED RS.3 19 736/- RS. 70 920/- TOTAL TAX EFFECT : RS.1 50 930/- 3. THE LD. D.R. WAS ASKED WHY THE APPEAL OF THE RE VENUE SHOULD NOT BE TREATED AS UNADMITTED IN VIEW OF THE CIRCULAR F. NO. 279/MISC. -64/05-ITJ DATED 24 TH OCTOBER 2005 AND THE DECISION OF THE HONBLE HIGH COURT IN THE C ASE OF CIT VS. CAMCO COLOUR CO. [ 254 ITR 565 (BOM)] AND THE HONBLE APEX COURT IN TH E CASE OF COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATION LTD. [ 267 ITR 2 72 (SC) ]. THE LD. D.R. CONTENDED THAT THE HONBLE PUNJAB & HARYANA HIGH CO URT IN THE CASE OF RANI PALIWAL VS. CIT [268 ITR 220 ] AND ALLAHABAD HIGH COURT IN THE CASE OF JUGAL KISHORE ARORA VS. DCIT [ 269 ITR 133 ] HAVE TAKEN THE VIEW THAT O NCE AN APPEAL IS FILED BY THE REVENUE THE TRIBUNAL SHOULD DISPOSE OF THE APPEAL ON MERITS AND THE ASSESSEE CANNOT RAISE THE OBJECTION AGAINST THE MAINTAINABILITY OF SUCH APPEAL. 4. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT THE CBDT V IDE INSTRUCTION NO. 2/2005 DATED 24 TH OCTOBER 2005 ISSUES GUIDELINES TO THE REVENUE AUT HORITIES WITH REGARD TO FILING OF APPEAL BEFORE THE TRIBUNAL HIGH COURT AND SUPREME COURT. FROM THE ABOVE INSTRUCTION IT IS EVIDENT THAT SINCE 1987 THE CBDT IS INSTRUCT ING ITS OFFICERS NOT TO FILE THE APPEAL WHERE THE TAX EFFECT IS BELOW CERTAIN MONETARY LIMI TS. VIDE INSTRUCTION NO. 1903 DATED 2 28 TH OCTOBER 1992 THE MONETARY LIMIT WAS REVISED UPWA RD AND THE OFFICERS WERE DIRECTED NOT TO FILE THE APPEAL BEFORE THE INCOME-T AX APPELLATE TRIBUNAL WHERE THE TAX EFFECT WAS BELOW RS.25 000/-. THE ABOVE MONETARY LI MIT WAS FURTHER REVISED UPWARD BY INSTRUCTION NO. 1979 DATED 27 TH MARCH 2000 AND THE OFFICERS WERE DIRECTED NOT TO F ILE THE APPEAL TO ITAT WHERE THE TAX EFFECT IS BELOW RS . 1 LAC. THEREAFTER IN PARTIAL MODIFICATION OF THE ABOVE INSTRUCTION THE BOARD VI DE INSTRUCTION NO. 2/2005 DATED 24.10.2005 HAS FURTHER RAISED THE ABOVE MONETARY L IMIT TO RS.2 LAKHS WITH THE SAME DIRECTIONS. THUS THE CBDT SINCE 1987 HAS NOT ON LY TAKEN A CONSISTENT APPROACH OF INSTRUCTING ITS OFFICERS FOR NOT FILING THE APPEAL WHERE THE TAX EFFECT IS BELOW THE MONETARY LIMIT BUT SUCH MONETARY LIMIT IS ALSO REV ISED UPWARD FROM TIME TO TIME. THE CIRCULAR UNDER INSTRUCTION 1979 DATED 27.3.2006 WAS CONSIDERED BY THE BONBAY HIGH COURT IN THE CASE OF CAMCO COLOUR CO. ( SUPRA ) AND THEIR LORDSHIPS HELD AT PAGE 568 AS UNDER:- IT APPEARS THAT DESPITE THE ABOVE CIRCULAR THE RE VENUE HAS CHOSEN TO FILE THE PRESENT APPEAL KNOWING FULLY WELL THAT THE CORRIDORS OF THE COURTS ARE FLOODED WITH PENDING LITIGATIONS. THE PRESENTATION OF THIS APPEAL IS QU ITE CONTRARY TO THE INSTRUCTION ISSUED IN THE CIRCULAR WHICH IS BINDING ON THE REVENUE. IN THE ABOVE VIEW OF THE MATTER CONSIDERING THE IN STRUCTIONS ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES WE ARE SATISFIED THAT THE BO ARD HAS TAKEN A POLICY DECISION NOT TO FILE APPEAL IN A TYPE OF CASE IN HAND AND THE SAME IS FINDING ON THE REVENUE (APPELLANT HEREIN). IN THE RESULT WE DISMISS THIS APPEAL ON THIS COUNT IN LIMINE WITH NO ORDER AS TO COSTS. 5. THE LD. D.R. HAS RELIED UPON THE CONTRARY DECISI ONS GIVEN BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF RANI PALIWAL (S UPRA) AND ALLAHABAD HIGH COURT IN THE CASE OF JUGAL KISHORE ARORA ( SUPRA ). HOWEVER WE FIND THAT RECENTLY THE APEX COURT HAS CONSIDERED THE EFFECT OF CIRCULAR ISSUED BY THE CBDT IN THE CASE OF COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATION LTD. REPORTED IN 267 ITR 272. THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF T HE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THE FO LLOWING PRINCIPLES AT PAGE 277 OF THE REPORTS:- THE PRINCIPLES LAID DOWN BY ALL THESE DECISIONS AR E (1) ALTHOUGH A CIRCULAR IS NOT BINDING ON A COUR T OR AN ASSESSEE IT IS NOT OPEN TO THE REVENUE TO RAISE A CONTENTION THAT IS CONTRARY TO A BINDING CIRCULAR BY THE BOARD. WHEN A CIRCULAR REMAINS IN OPERATION THE REVENUE IS BOU ND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID NOR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. 3 (2) DESPITE THE DECISION OF THE COURT THE DEP ARTMENT CANNOT BE PERMITTED TO TAKE A STAND CONTRARY TO THE INSTRUCTIONS ISSUED BY THE BO ARD. (3) A SHOW CAUSE NOTICE AND DEMAND CONTRARY TO EXIS TING CIRCULARS OF THE BOARD ARE AB INITIO BAD. (4) IT IS NOT OPEN TO THE REVENUE TO ADVANCE AN ARG UMENT OR FILE AN APPEAL CONTRARY TO THE CIRCULARS. ( EMPHASIS SUPPLIED ) FROM THE ABOVE IT IS EVIDENT THAT THE HONBLE APEX COURT HAS LAID DOWN THAT IT IS NOT OPEN TO THE REVENUE TO ADVANCE AN ARGUMENT OR FILE AN APPEAL CONTRARY TO THE CIRCULAR. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN F ILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT VIDE CIRCULAR F. NO. 279/MISC-64/05-ITJ DATED 24 TH OCTOBER 2005. THEREFORE THE ABOVE DECISION OF THE HONBLE APEX C OURT WOULD BE SQUARELY APPLICABLE. EVEN OTHERWISE THE REVENUE HAS BEEN TAKING A CONSI STENT APPROACH SINCE 1987 NOT TO FILE APPEAL WHERE THE REVENUE EFFECT IS BELOW CERTA IN MONETARY LIMIT TO REDUCE THE LITIGATION PENDING BEFORE THE TRIBUNAL AND THE COUR TS. IF THE APPEALS CONTRARY TO SUCH CIRCULAR ARE ADMITTED IT WOULD FRUSTRATE THE PURPO SE OF ISSUING SUCH INSTRUCTIONS. IN THE ABOVE CIRCUMSTANCES WE RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF INDIAN OIL CORPORATION LTD. (SUPRA) AND THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CAMCO COLOUR CO. ( SUPRA ) WHICH HAS SUBSEQUENTLY BEEN FOLLOWED IN CIT VS- PITTHWA ENGG. WORKS (2005) 276 ITR 519 (BOM) AND RECENTLY IN CIT VS- ZOEB Y. TOPIWALA (2006) 284 ITR 379 (BOM) HOLD THAT THE REVENUE SHOULD NOT HAVE FILED THE APPEAL CONTRARY TO THE CIRCULAR BY THE CBDT. ACCORDINGLY THE SAME IS NOT ADMITTED AND BEING DISMISSED IN LIMINE. 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED AS UNADMITTED. ORDER PRONOUNCED IN THE OPEN COURT 28.5.10 SD/- SD/- (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28TH MAY 2010 COPY TO : 1. ACIT CIRCLE-24 KOLKATA. 2. SMT. MUKTI CHATTERJEE & SRI DIPANKAR BANERJEE L/R OF LATE ANIMA BANERJEE BANKIMPALLY MADHYAMGRAM 24 PARGANAS (N) 3. CIT(A) KOLKATA. 4. CIT KOLKATA. 5. D.R. ITAT KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT. KOLKATA