ITO, Ward - 37(1), Kolkata, Kolkata v. Jamini Kanta Sen, Kolkata

ITA 676/KOL/2010 | 1992-1993
Pronouncement Date: 26-05-2010

Appeal Details

RSA Number 67623514 RSA 2010
Assessee PAN SINCE1987H
Bench Kolkata
Appeal Number ITA 676/KOL/2010
Duration Of Justice 1 month(s) 18 day(s)
Appellant ITO, Ward - 37(1), Kolkata, Kolkata
Respondent Jamini Kanta Sen, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 26-05-2010
Appeal Filed By Department
Bench Allotted B
Tribunal Order Date 26-05-2010
Assessment Year 1992-1993
Appeal Filed On 07-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH - B KOLKATA ( ) BEFORE . . SHRI B.R.MITTAL JUDICIAL MEMBER. /AND . . SHRI B.K.HALDAR ACCOUN TANT MEMBER / ITA NO. 676 AND 677 /KOL/2010 / ASSESSMENT YEAR 1992 - 93 AND 1993 - 94 ITO WARD 37(1) KOLKATA. - - - VERSUS - . JAMINI KANTA SEN 8/1 CHINTAMONI DAS LANE KOLKATA - 9 GIR NO.15(8)PY - 8819/CAL ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.K.MISRA DR / FOR THE RESPONDENT : / SHRI TAPAN KUMAR ROY AR / ORDER . . SHRI B.R.MITTAL JUDICIAL MEMBER. THE REVE NUE HAS FILED THESE TWO APPEAL S AGAINST TWO ORDER S BOTH DT.22.12.2009 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) XXIV KOLKATA FOR THE ASSESSMENT YEAR 1992 - 93. 2. THESE TWO APPEALS HAVE BEEN FILED BY THE REVENUE DELAYED BY 10 DAYS FOR WHICH THE REVENUE H AS FILED DATE - WISE REASON FOR THE SAID DELAY ALONGWITH THE MEMORANDUMS OF APPEALS. CONSIDERING THE SAME AS REASONABLE CAUSE WE CONDONE THE DELAY AND ADMIT THE APPEALS FOR HEARING. 3 . AT THE TIME OF HEARING THE LEARNED AR OF THE ASSESSEE CONTENDED THAT TH E TAX EFFECT INVOLVED IN EACH OF THE PRESENT APPEAL S IS LESS THAN RS.2 LAKHS AND AS SUCH THE APPEAL S OF THE DEPARTMENT ARE NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 279/MISC. - 64/05 - ITJ DATED 24 - 10 - 2005 READ WITH INSTRUCTION NO. 2/2005 DATED 24 - 10 - 2005 . THE LEARNED DR DID NOT DISPUTE THE FACT THAT THE TAX EFFECT IN EACH OF THE PRESENT APPEAL S IS LESS THAN RS.2 LAKHS. 4 . HAVING HEARD BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW WE FIND THAT THE CBDT VIDE INSTRUCTION NO. 2 /2005 DATED /ITA NO. 676/KOL/2010 2 24.10.2005 ISSUES GUIDELINES TO THE REVENUE AUTHORITIES WITH REGARD TO FILING OF APPEAL BEFORE THE TRIBUNAL HIGH COURT AND THE SUPREME COURT. FROM THE ABOVE INSTRUCTION IT IS EVIDENT THAT SINCE 1987 THE CBDT HAS BEEN INSTRUCTING ITS OFFICERS NOT TO FILE THE APPEAL WHERE THE TAX EFFECT IS BELOW CERTAIN MONETARY LIMITS. VIDE INSTRUCTION NO. 1903 DATED 28.10.1992 THE MONETARY LIMIT WAS REVISED UPWARD AND THE OFFICERS WERE DIRECTED NOT TO FILE APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL WHERE THE TAX EFFECT WAS BELOW RS.25 000/ - . THE ABOVE MONETARY LIMIT WAS FURTHER REVISED UPWARD BY INSTRUCTION NO. 1979 DATED 27.3.2000 AND THE OFFICERS WERE DIRECTED NOT TO FILE THE APPEAL TO ITAT WHERE THE TAX EFFECT IS BELOW RS.1 00 000/ - . THEREAFTER IN PARTI AL MODIFICATION OF THE ABOVE INSTRUCTION THE BOARD VIDE INSTRUCTION NO. 2/2005 DATED 24.10.2005 HAS FURTHER RAISED THE ABOVE MONETARY LIMIT TO RS.2 00 000/ - WITH THE SAME DIRECTIONS. THUS THE C.B.D.T. SINCE 1987 HAS NOT ONLY TAKEN A CONSISTENT APPROACH O F INSTRUCTING ITS OFFICERS FOR NOT FILING THE APPEAL WHERE THE TAX EFFECT IS BELOW THE MONETARY LIMIT BUT SUCH MONETARY LIMIT IS ALSO REVISED UPWARD FROM TIME TO TIME. THE CIRCULAR UNDER INSTRUCTION NO.1979 DATED 27 - 3 - 2000 WAS CONSIDERED BY THE BOMBAY HIG H COURT IN THE CASE OF CAMCO COLOUR CO. 254 ITR 565 AND THEIR LORDSHIPS HELD AT PAGE 568 AS UNDER IT APPEARS THAT DESPITE THE ABOVE CIRCULAR THE REVENUE HAS CHOSEN TO FILE THE PRESENT APPEAL KNOWINGLY FULLY WELL THAT THE CORRIDORS OF THE COURTS ARE FLOO DED WITH PENDING LITIGATIONS. THE PRESENTATION OF THIS APPEAL IS QUITE CONTRARY TO THE INSTRUCTION ISSUED IN THE CIRCULAR WHICH IS BINDING ON THE REVENUE. IN THE ABOVE VIEW OF THE MATTER CONSIDERING THE INSTRUCTIONS ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES WE ARE SATISFIED THAT THE BOARD HAS TAKEN A POLICY DECISION NOT TO FILE APPEAL IN A TYPE OF CASE IN HAND AND THE SAME IS BINDING ON THE REVENUE (APPELLANT HEREIN). IN THE RESULT WE DISMISS THIS APPEAL ON THIS COUNT IN LIMINE WITH NO ORDER AS TO COS TS. 5 . 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. 267 ITR 272. THEIR LORDSHIPS EXAMINED THE EARLIER DECISIONS OF THE APEX COURT WIT H REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THE FOLLOWING PRINCIPLES AT PAGE 277 OF THE REPORTS - /ITA NO. 676/KOL/2010 3 THE PRINCIPLES LAID DOWN BY ALL THESE DECISIONS ARE 1 ) ALTHOUGH A CIRCULAR IS NOT BINDING ON A COURT ON AN ASSESSEE IT IS NOT OPEN TO THE RE VENUE TO RAISE A CONTENTION THAT IS CONTRARY TO A BINDING CIRCULAR BY THE BOARD WHEN A CIRCULAR REMAINS IN OPERATION THE REVENUE IS BOUND BY IT AN D CANNOT BE ALLOWED TO PLEAD THA T IT IS NOT VALID NOR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. 2) D ESPITE THE DECISION OF THIS COURT THE DEPARTMENT CANNOT BE PERMITTED TO TAKE A STAND CONTRARY TO THE INSTRUCTIONS ISSUED BY THE BOARD. 3) A SHOW CAUSE NOTICE AND DEMAND CONTRARY TO EXISTING CIRCULARS OF THE BOARD ARE AB INITIO VOID. 4) IT IS NOT OPEN TO THE REVENUE TO ADVANCE AN ARGUMENT OR FILE AN APPEAL CONTRARY TO THE CIRCULARS. 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 CIRCULA R. ACCORDINGLY TH ESE TWO APPEAL S FILED BY THE REVENUE ARE NOT ADMITTED AND ARE BEING DISMISSED IN LIMINE . 6 . IN THE RESULT BOTH THE APPEAL S OF THE REVENUE ARE DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 26.05.2010 SD/ - SD/ - ( . . ) ( B.K.HALDAR) ACCOUNTANT MEMBER . ( . . ) B.R.MITTAL JUDICIAL MEMBER ( ) DATE : 26 .05.2010 ( /H.K.PADHEE) / SNR.PRIVATE SECRETARY. /ITA NO. 676/KOL/2010 4 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : ITO WARD 37(1) KOLKATA. 2 / THE RESPONDENT : JAMINI KANTA SEN 8/1 CHINTAMONI DAS LANE KOLKATA - 9. 3. / THE CIT 4. ( ) / THE CIT(A) 5. / DR KOLKATA BENCHES KOLKATA 6. GUARD FILE . / TRUE COPY / BY ORDER / DEPUTY REGISTRAR .