Income Tax Appellate Tribunal - Kolkata
Dcit,Central Circle-1(4), Kolkata, ... vs Binod Kumar Mishra & Others (Huf), ... on 27 August, 2018
I . T. A . N o s 2 1 9 , 2 2 8 & 2 2 9 / KO L / 2 0 1 7
Assessment year: 2013-2014
Page 1 of 5
IN THE INCOME TAX APPELLATE TRIBUNAL,
KOLKATA 'D' BENCH, KOLKATA
Before Shri P.M. Jagtap, Accountant Member &
Shri S.S. Viswanethra Ravi, Judicial Member
I.T .A. No. 219/KOL/2017
Assessment Year: 2013-2014
Deputy Commissioner of Income Tax,........ .....................................Appellant
Central Ci rcle-1 (4), Kolkata,
Aayakar Bhawan Po orva,
110, Shanti Pally,
Kolkata-700 107
-Vs.-
Binod Kumar Mis hra & Others (HUF),....... .....................................Respondent
7, Waterloo Street, 2 n d Floor,
Esplanade,
Kolkata-700 069
[PAN: AABHB 7999 C]
&
I.T .A. No. 228/KOL/2017
Assessment Year: 2013-2014
Deputy Commissioner of Income Tax,........ .....................................Appellant
Central Ci rcle-1 (4), Kolkata,
Aayakar Bhawan Po orva,
110, Shanti Pally,
Kolkata-700 107
-Vs.-
M/s. Mis hra Bricks Field Pvt. Limi ted,...... ......................................Respondent
7, Waterloo Street, 2 n d Floor,
Esplanade,
Kolkata-700 069
[PAN: AABCM 6831 H]
&
I.T .A. No. 229/KOL/2017
Assessment Year: 2013-2014
Deputy Commissioner of Income Tax,........ .....................................Appellant
Central Ci rcle-1 (4), Kolkata,
Aayakar Bhawan Po orva,
110, Shanti Pally,
Kolkata-700 107
-Vs.-
M/s. Like Wish Vini may Pvt. Limi ted,...... .....................................Respondent
3 r d Floor, Room No. 14,
29A, Rabindra Sarani,
I . T. A . N o s 2 1 9 , 2 2 8 & 2 2 9 / KO L / 2 0 1 7
Assessment year: 2013-2014
Page 2 of 5
Kolkata-700 073
[PAN: AAACL 9178 R]
Appearances by:
Shri P.K. Srihari, CIT, D.R. , for the Department
Shri A.K. Tibrewal, FCA & Shri Amit Agarwal, Advocat e, for the Assessees
Date of concluding th e hearing : Au gust 27, 2018
Date of pronouncing the order : Au gust 27, 2018
O R D E R
Per Shri P.M. Jagtap, A.M.:
These three appeals preferred by the Revenue in case of three assessees are directed against the following orders of ld. Commissioner of Income Tax (Appeals)-20, Kolkata:-
(i) I.T.A. No. 219/KOL/2017 Bino d Kumar Mishra & Others (HUF)-
order dated 8 t h November 2016;
(ii) I.T.A. No. 228/KOL/2017 M/s. Mishra Bricks Field Pvt . Limit ed-
order dated 7 t h November, 2016;
(iii) I.T.A. No. 229/KOL/2017 M/s. Like Wish Vinimay Pvt . Limited-
order dated 7 t h November, 2016.
2. As pointed out by the ld. Counsel for the assessees, at the outset, the tax effect involved in each of these three appeals individually is less than the revised monetary limit of Rs.20 lacs fixed by CBDT for filing the Revenue's appeals before the Tribunal vide latest Circular No. 3/2018 dated 11.07.2018. It will be pertinent to reproduce the relevant portion of the said Circular No. 3/2018 dated 11.07.2018 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/-
I . T. A . N o s 2 1 9 , 2 2 8 & 2 2 9 / KO L / 2 0 1 7 Assessment year: 2013-2014 Page 3 of 5 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. On perusal of the Circular No. 3/2018 dated 11.07.2018 and the materials available on record, we do not see these cases falling under any of the exceptions contemplated in the said circular per se. We also find that this circular makes it very clear that the revised monetary limits shall apply retrospectively to pending appeals as well. Hon'ble apex court in Commissioner of Customs vs Indian Oil Corporation Ltd reported in 267 ITR 272 (SC) has settled the law that CBDT's circulars are very much binding on revenue authorities. We thus hold that all these Revenue's appeals deserve to be dismissed in terms of low tax effect. We make it clear that it shall be very much open for the Revenue to seek necessary rectification in case it is found that any of these appeals involve operations of exception clauses in the tax effect circular as per law.
4. In respect of these three appeals filed by the Revenue, the assessees have filed their Cross Objections being C.O. Nos. 28/KOL/2017 (in ITA No. 219/KOL/2017), 33/KOL/2017 (in ITA No. 228/KOL/2017) & 92/KOL/2017(in ITA No. 229/KOL/2017). The ld. D.R. has contended that these three Cross Objections filed by the assessees are liable to be dismissed in limine as a result of dismissal of the corresponding appeals of the Department because of low tax effect. In this regard, the ld. Counsel for the assessees has relied on the decision of Delhi Bench of this Tribunal in the case of ACIT -vs.- Ajay Kalia (2016) 66 Taxmann.com 99, wherein it was held that where the Cross Objection filed under section 253(4) is on an issue independent of the I . T. A . N o s 2 1 9 , 2 2 8 & 2 2 9 / KO L / 2 0 1 7 Assessment year: 2013-2014 Page 4 of 5 appeal filed by the Revenue, then such Cross Objection cannot be dismissed simply on the ground of dismissal of the appeal by the Revenue involving low tax effect. He has contended that penalty under section 271AAB(1)(a) was imposed by the Assessing Officer on the total income, which included partly the income represented by cash and other assets found or seized during the course of search while the balance income represented income suo motu declared by the assessees, which was not represented by any asset found or seized during the course of search. He has submitted that when the said penalty imposed by the Assessing Officer was challenged by the assessees in the first appeal filed before the ld. CIT(Appeals), the ld. CIT(Appeals) vide his impugned orders has confirmed the penalty to the extent it was on the amount of undisclosed income represented by cash and other assets found or seized during the course of search while the penalty imposed in respect of the balance undisclosed income, which was suo motu declared by the assessees and which did not represent any asset found or seized during the course of search, was cancelled by him. He has contended that the issue involved in the Cross Objections filed by the assessees challenging the action of the ld. CIT(Appeals) to the extent of confirmation of penalty levied by the Assessing Officer under section 271AAB(1)(a) thus is different and the same can be decided independent of the corresponding appeal filed by the Revenue. We find merit in this contention of the ld. Counsel for the assessees and keeping in view the submissions made by the ld. Counsel for the assessees and respectfully following the decision of the Coordinate Bench of this Tribunal at Delhi in the case of ACIT -vs.- Ajay Kalia (supra), we hold that all the three Cross Objections filed by the assesses, which involve an issue, which can be decided independent of the appeals filed by the Revenue, are maintainable having independent existence. The Registry is accordingly directed to fix the said Cross Objections along with other group cases involving a similar issue for hearing and disposal.
5. In the result, all the three appeals of the Revenue are dismissed.
Order pronounced in the open Court on August 27, 2018.
Sd/- Sd/-
(S.S. Viswanethra Ravi) (P.M. Jagtap)
Judicial Member Accountant Member
Kolkata, the 27 t h day of August, 2018
I . T. A . N o s 2 1 9 , 2 2 8 & 2 2 9 / KO L / 2 0 1 7
Assessment year: 2013-2014
Page 5 of 5
Copies to : (1) Deputy Commissioner of Income Tax,
Central Ci rcle-1 (4), Kolkata,
Aayakar Bhawan Po orva,
110, Shanti Pally, Ko lkata-700 107
(2) Binod Kumar Mis hra & Others (HUF),
7, Waterloo Street, 2 n d Floor, Esplanade,
Kolkata-700 069
(3) M/s. Mis hra Bricks Field Pvt. Limi ted,
7, Waterloo Street, 2 n d Floor, Esplanade,
Kolkata-700 069
(4) M/s. Like Wish Vinimay Pvt. Limited,
3 r d Floor, Room No. 14,
29A, Rabindra Sarani,
Kolkata-700 073
(5) Commissioner of Income Tax (Appeals)-20, Kolkata, (6) Commissio ner of Income Tax- , (7) The Depart ment al Represent ative (8) Guard File By order Senior Private Secretary, Head of Office/D.D.O. Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.