Karnataka High Court
The Commissioner Of Income Tax vs M/S Mulla T V & Home Appliance on 16 October, 2009
Bench: V.G Sabhahit, S.N.Satyanarayana
. ,
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 16TH DAY OF OCTOBER 2009
PRESENT A_
THE HONBLE MR JUSTICE VCSAEHAHITV~._jj-i._4i_fl__
AND __ .l.__f A
THE HON'BLE MR JUSTICE S.N.SATYANAmlYAi§Ai'
Income Tax Appeal No..f333..of " 4'
Between:
1. The Commissioner of
Income Tax
Khimjibhoi Commercial
Complex ' .,
Opp. Civil Hospital
Belgaum -- 590' 001
2. The;llnCOme0T_aX& _ --
Ward,-1{'f2) . ' l .
Belgai;im" p ' ' .. Appellants
(By Sri .M.V.Ses_haCh'ala;- Advocate)
8i}'HOme Appliances
Canapath G;ja3_1£j?=
Belg-a__um> ' _ .. Respondent
"{R~1 servelti and unrepresented)
~'l'his income tax appeal is filed u/s 260-A of Income
Tax Act, 1961 arising out of Order dt.26.02.2007 passed in
IPA No.16/Panj/200'? for the assessment year 2003-2004
praying this I-IOn'ble Court to formulate the substantial
questions of law formulated therein and etc.
This appeal Coming on for admission this day,
Sabhahit J., delivered the following-
JUDGMENT
This appeal by the Revenue is filed under Section of the Income Tax Act, 1961 (hereinafter referred ' Act') being aggrieved by the order ii Appellate Tribunal, Panaji Ben«ch7'_i_ii"' No.16/Panj/2007 for the asie.ee-e.ment"- year i:;.ooi3j--'2io.0<i by order dated 26.02.20Q? whereiii1.__th_e has been dismissed in limine issued by the CBDT and thee'--decisio'n':.-oi Court in Commissioner-it 1: Tax Appellate Tribune}1232.'"irt;_2er)'--eerid~-- hioildirigi that the value of the subjectvvmat.teir;ofy less than Rs.2,00,000/ --. '2.eyTheiresponders.t herein filed return and the order of was passed on 14.12.2003. Subsequently as per 5the- nerimsi sinee it was found that reassessment was necessar'y,__r1otice was issued under Section 143(2) on and subsequent dates to produce accounts and " __docuinents required for the purpose of assessment and on Verification of the books of accounts it was noticed that the assessee had made payment to M/s N.K.E1ectroriics, I-Iubli in an amount exceeding Rs.20,000/-- in a mode otherwise by an account payee cheque or draft and as the payment had L/V been made in cash for the purchase of the said supply in contravention of the provisions of Section 40A(3) of the Act amounting to Rs.7,16,850/-- in respect of 17 payments. Accordingly, the assessing officer concluded the asse~s_sm_en_t and held that assessee is liable to pay tax on . with interest under Section 23453' of aggrieved by the said order passedlby the. assessee preferred appeal': before oti:ficev...._9f the Cornmissioner of Income Tax ilA.ppeals), in ITA No. 17/ Bgrn/ 2006-2007 the Appe--!.l_'ate'Authority by order dated 30. 1 1.2006._alloWe,d..the. 'by holding that the disallowing an amount of Rs.50,000/--" and.VVdisallio'wiance of Rs.l,33,370/--, made by the Assessing.Qffic'eri'*wasi deleted and disallowance to the of~.Rs,x10,000'"/'4"was upheld and relief was granted to a'ppe«1,lant~as'sessee to the extent of Rs.1,33,37'O/--. Being the said order passed by the Appellate 0'V._Authority;-Commissioner of Income Tax Appeals, Belgaurn, A reyenue preferred ITA No.16/Panj/2007 and the Appellate A '[i3."ibunal dismissed the appeal in iimine without going into the merits of the appeal on the ground that subject matter of the appeal was less than Rs.2,00,000/-- and in View of the Circular issued by the CBDT and the decision of the Delhi \,.4$ High Court reported in 232 ITR 207 appeal was not maintainable and accordingly dismissed the appea,lv;t_B.ei*ng aggrieved by the said order, this appeal is by . There is delay of five days in filing the bappeal"a'nid_i. cielayu has been condoned by order dated it 0
3. The respondent served .jAf3'-.:thi.:s"'appeal, 0' 0 has not chosen to appear before--..t_his"-Court.' 'Thavappeal is disposed of finally.
4. we have he-ardi the lea.rned.c_o,i.1nsel appearing for the appellai.2t-- ~ 0 ._ oi law involved in this appeal isgas under} . "
iW'he..t.her the Tribunal was correct in "l._j*holding that tax effect involved is less the monetary limits prescribed by CBDT vide instruction in F.NO.279/MiS.64/05-IT dated 24.10.2005 without looking to clause 3 of the said instruction?
(ii) Whether the revenue can prefer an appeal without being hindered by the \,.)-
monetary limits prescribed in instruction _bea.riin_g F.No.27'9/Mis.64/O5--1T _ 24.10.2005 though ' question of law of.:im_-portaaneeii'an'd:'».e§ha1t.i too when aris:in_g separiately?'
6. Having regard urged by the iearned appellants, we answer law No.1 in the negative " aiiirmative for the followings :éa_é'o'n The learned'counseli'~-submitted that the circular issued by the CED? would be it applicable only when no substantial of law iiiisvv-.inv'olved and the subject matter is not 'r:ec'urri'ng'a'nd"the same is covered by the decision of the Division ifiiefnicihiof this Court. in view of the decision of this Bench.,i'i.n.V4lTA No.262/2004 dated 23.09.2008 wherein identical order passed by the Tribunai has been set: aside andwthe matter has been remitted to the Tribunal for passing hiiiifresh orders on merits of the appeal by holding that the appeal was maintainabie. We have held in the said decision dated 2309-2008 in ETA No.262/2004 that where the appeal \../9 involves substantial question of law and the subject matter is not recurring, the circular issued by CBDT would applicable. Accordingly we answer the above question of law No.1 in the negative and 2 in..thie'=afiiifn1ati\}e"
and pass the following:
ORB ER
(a) Following the reasoinss said decision since the appeal is similar to the in ETA No.262 of and the order passed i No. 16/ PANJ / 2 007 holdifiig is' maintainable is set aside.
Theii"appea,l filed by the Revenue in ITA 'Vie._/i1a.Aixi;I~--,r;200'7 on the file of the Tribunal is held i[()r.bt3 inoiivntaiinable and the appeal is remitted to the Tritium-Val "for fresh disposal on merits in accordance with law.
Sd/-7 JUDGE sa/-3 Ping" moss