It is general phenomena amongst the tax payers that in form 26AS they can only view the details of TDS deducted, Advance tax and Self Assessment tax Paid.But in addition to these a taxpaer can view in 26AS the information on hisincome tax Refund and his transactionin Mutual Fund, Shares and Bonds, Immovable properties etc. (as reported by AIR filer).Details in Form 26AS
Details of tax deducted on behalf of the tax payer by deductors
Details of tax collected on behalf of the tax payer by collectors
Advance tax / self-assessment tax / regular assessment tax etc. deposited by the tax payers (PAN holders)
Refund received during the financial year
Details of following transactions done by you (as reported by AIR filer)
Cash deposits in saving account (Rs. 10 lakh and above)
Credit card bills (Rs. 2 lakh and above)
Mutual Fund purchase (Rs. 2 lakh and above)
Purchase of bonds/debentures (Rs. 5 lakh and above)
Purchase of shares of a company (Rs. 1 lakh and above)
Purchase of immovable property (Rs. 30 lakh and above)
Sale of immovable property (Rs. 30 lakh and above)
Purchase of RBI bonds (Rs. 5 lakh and above)
Details of tax deducted on behalf of the tax payer by deductors
Details of tax collected on behalf of the tax payer by collectors
Advance tax / self-assessment tax / regular assessment tax etc. deposited by the tax payers (PAN holders)
Refund received during the financial year
Details of following transactions done by you (as reported by AIR filer)
Cash deposits in saving account (Rs. 10 lakh and above)
Credit card bills (Rs. 2 lakh and above)
Mutual Fund purchase (Rs. 2 lakh and above)
Purchase of bonds/debentures (Rs. 5 lakh and above)
Purchase of shares of a company (Rs. 1 lakh and above)
Purchase of immovable property (Rs. 30 lakh and above)
Sale of immovable property (Rs. 30 lakh and above)
Purchase of RBI bonds (Rs. 5 lakh and above)
IT : CBDT Instruction No. 3 of 2011, dated 9-2-2011 by which CBDT has revised monetary tax limit to Rs. 3 lakh for filing appeal before Tribunal would also be applicable to pending cases also
■■■
[2013] 33 taxmann.com 8 (Jodhpur - Trib.)
IN THE ITAT JODHPUR BENCH
Assistant Commissioner of Income-tax, Circle-3, Jodhpur
v.
Mahendra Kumar Bohra*
HARI OM MARATHA, JUDICIAL MEMBER
AND N.K. Saini, ACCOUNTANT MEMBER
AND N.K. Saini, ACCOUNTANT MEMBER
IT APPEAL NOS. 27 & 28 (JODH) OF 2011
Co. Nos. 26 & 28 (JODH) OF 2011
[ASSESSMENT YEAR 2005-06]
Co. Nos. 26 & 28 (JODH) OF 2011
[ASSESSMENT YEAR 2005-06]
NOVEMBER 26, 2012
Section 253, read with section 268A, of the Income-tax Act, 1961 - Appellate Tribunal - Appeals to [Monetary limit] - Assessment year 2005-06 - Case of assessee was that since tax effect in instant appeal was less than amount prescribed by CBDT i.e., Rs. 3 lakh, revenue ought not to have filed appeal - It was noticed that CBDT had issued Instruction No. 3 of 2011, dated 9-2-2011 by which CBDT had revised monetary tax limit to Rs. 3 lakh for filing appeal before Tribunal, and that Delhi High Court in case of CIT v. Delhi Race Club Ltd. [IT Appeal No. 128 of 2008, dated 3-3-2011] had held that instructions would also be applicable to pending cases - Whether, therefore, revenue should not have filed instant appeal before Tribunal - Held, yes [Paras 7 & 8] [In favour of assessee]
Circulars and Notifications : Instruction No. 3 of 2011, dated 9-2-2011
FACTS
| ■ | In the instant appeal filed by the revenue, tax effect was less than Rs. 3 lakh which was less than the monetary tax limit prescribed by the CBDT. |
HELD
| ■ | It is not in dispute that the Board's instruction or directions issued to the other income-tax authorities are binding on those authorities, therefore, the department ought not to have filed the appeal in view of the above mentioned section 268A since the tax effect in the instant case is less than the amount prescribed for not filing the appeal. [Para 5] | |
| ■ | It is noticed that the CBDT has issued Instruction No. 3 of 2011, dated 9-2-2011, by which the CBDT has revised the monetary limit to Rs. 3 lakh for filing the appeal before the Tribunal. [Para 6] | |
| ■ | Keeping in view the CBDT Instruction No. 3 of 2011, dated 9-2-2011 and also the provisions of section 268A, the revenue should not have filed the instant appeal before the Tribunal. [Para 7] | |
| ■ | From the ratio laid down by the Delhi High Court in the case of CIT v. Delhi Race Club Ltd. [IT Appeal No. 128 of 2008, dated 3-3-2011], it is clear that the instructions issued in the Circulars by CBDT are applicable for pending cases also. [Para 9] | |
| ■ | In view of the above, the appeal filed by the revenue is to be dismissed.[Para 10] |
CASES REFERRED TO
CIT v. Oscar Laboratories (P.) Ltd. [2010] 324 ITR 115/[2009] 179 Taxman 176 (Punj. & Har.) (para 7), CIT v. Abhinash Gupta [2010] 327 ITR 619 (Punj. & Har.) (para 7), CIT v. Varindera Construction Co. [2011] 331 ITR 449/10 taxmann.com 38 (Punj. & Har.)(FB) (para 7), CIT v. Delhi Race Club Ltd. [IT Appeal No. 128 of 2008, dated 3-3-2011] (para 8) and CIT v. P.S. Jain & Co. [2012] 20 taxmann.com 582/[2011] 335 ITR 591 (Delhi) (para 8).
G.R. Kokani for the Appellant. R.R. Singhvi for the Respondent.
ORDER
Hari Om Maratha, Judicial Member - The appeals filed by the Revenue and cross objections by the assessee are directed against the separate orders of the CIT(A), Jodhpur, each dated 16.11.2010 for A.Y. 2005-2006.
2. During the course of hearing, learned counsel for the assessee submitted that the tax effect in these appeals are less than the amount prescribed by the CBDT where department ought not to have filed the appeal.
3. The ld. D.R. although supported the order of the Assessing Officer but could not controvert the aforesaid fact that tax effect in these appeals are less than Rs.3,00,000/-.
4. After considering the rival submissions and the material on record, it is noticed that Section 268A has been inserted by the Finance Act, 2008 with retrospective effect from 01/04/99. The provisions contained in section 268A read as under:
"268A. (1) The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application for reference by any income-tax authority under the provisions of this Chapter.
(2) Where, in pursuance of the orders, instructions or directions issued under sub-section (1), an income-tax authority has not filed any appeal or application for reference on any issue in the case of an assessee for any assessment year, it shall not preclude such authority from filing an appeal or application for reference on the same issue in the case of—
| (a) | the same assessee for any other assessment year; or | |
| (b) | any other assessee for the same or any other assessment year. |
(3) Notwithstanding that no appeal or application for reference has been filed by an income-tax authority pursuant to the orders or instructions or directions issued under sub-section (1), it shall not be lawful for an assessee, being a party in any appeal or reference, to contend that the income-tax authority has acquiesced in the decision on the disputed issue by not filing an appeal or application for reference in any case.
(4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.
(5) Every order, instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-sections (2), (3) and (4) shall apply accordingly."
5. It is not in dispute that the Board's instruction or directions issued to the other income-tax authorities are binding on those authorities, therefore, the department ought not to have filed the appeal in view of the above mentioned section 268A since the tax effect in the instant case is less than the amount prescribed for not filing the appeal.
6. It is noticed that the CBDT has issued Instruction No. 3 of 2011 dated 09.02.2011, by which the CBDT has revised the monetary limit to Rs. 3,00,000/- for filing the appeal before the Tribunal.
7. Keeping in view the CBDT Instruction No.3 of 2011 dated 09.02.2011 and also the provisions of Section 268A of Income Tax Act, 1961, we are of the view that the Revenue should not have filed the instant appeal before the Tribunal. While taking such a view, we are fortified by the following decisions of Hon'ble Punjab & Haryana High Court :-
| 1. | CIT v. Oscar Laboratories P. Ltd. [2010] 324 ITR 115/[2009] 179 Taxman 176 (Punj. & Har.) | |
| 2. | CIT v. Abinash Gupta [2010] 327 ITR 619 (Punj. & Har.) | |
| 3. | CIT v. Varindera Construction Co. [2011] 331 ITR 449/198 Taxman 42/10 taxmann.com 38 (Punj. & Har.)(FB) |
8. Similarly the Hon'ble Delhi High Court in the case of CIT v. Delhi Race Club Ltd. in ITA No. 128/2008, order dated 03.03.2011 by following the earlier order dated in the case of CIT v. P.S. Jain & Co. [2012] 20 taxmann.com 582/[2011] 335 ITR 591 (Delhi) held that such circular would also be applicable to pending cases.
9. From the ratio laid down by the Hon'ble Delhi High Court, it is clear that the instructions issued in the Circulars by CBDT are applicable for pending cases also. Therefore, by keeping in view the ratio laid down in the aforesaid referred to cases, we are of the considered view that Instruction No. 3/11 dated 09.02.2011 issued by the CBDT are applicable for the pending cases also and in the said instructions, monetary tax limit for not filing the appeal before the ITAT is Rs. 3.00 lakhs.
10. In view of the above, without going into merits of the case, we dismiss the appeals filed by the Revenue.
11. As regards the cross objections filed by the assessee are concerned, the ld. counsel for the assessee stated at Bar that he has instructions not to press the Cross Objections and gave in writing "Cross objections not pressed", therefore, both the Cross objections of the assessee are dismissed as not pressed.
12. In the result, the appeals of the Revenue as well as the cross objections of the assessee stand dismissed.As per provision of sec. 254(2) of the Income Tax Act, 1961 "The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer:
Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard :
[Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]"
(1) In case of ACIT vs. Saurashtra Kutch Stock Exchange of India 305 ITR 227 (SC) conclude the issue? It was observed there:
The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified under Section 254(2). The SC has held that a judgment of the jurisdictional High Court and that of the SC, even if rendered subsequently, will constitute a mistake apparent from the record.
The full text is available here:
(2) A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834 (Guj).
It was held by the Division Bench of the High Court that if the point is covered by a decision of the Jurisdictional Court rendered prior or even subsequent to the order of rectification, it could be said to be "mistake apparent from the record" under Section 254 (2) of the Act and could be corrected by the Tribunal.
(3) The MUMBAI TRIBUNAL in case of KAILASHNATH MALHOTRA v/s JT.CIT(TM) 34 SOT 541 has held that
A judgment of the jurisdictional High Court and that of the SC, even if rendered subsequently, will constitute a mistake apparent from the record under Section 254 (2) of the Act and could be corrected by the Tribunal.
(4) S. 254(2) : Appellate Tribunal – Rectification of Mistakes – Subsequent decision of Jurisdictional High Court or Supreme Court
V. R. Chittanandam vs. ACIT (2010) 5 ITR 258 (Chennai)(Trib.)
Decision of the Supreme Court or the Jurisdictional High Court is binding on the Tribunal, and therefore, constitute an apparent error in the order, which is contrary to the principle laid down in the subsequent decision. Accordingly, the subsequent law laid down by the Supreme Court or the jurisdictional High Court has to be considered for rectifying the mistake under section 254(2) of the Income Tax Act 1961.
May 9th, 2013
|
The assessee, engaged in the business of transport contractor and commission agent, incurred expenditure of Rs. 8.74 crores on payment to contractors where no TDS was deducted. The AO & CIT(A) held that the expenditure had to be disallowed u/s 40(a)(ia). On appeal, the Tribunal, relying on Merilyn Shipping & Transports 146 TTJ 1 (Viz) (SB) held that as the said amount had already been paid and was not "payable" as of 31st March, the disallowance u/s 40(a)(ia) could not be made. On appeal by the department to the High Court, HELD reversing the Tribunal:
In Merilyn Shipping 146 TTJ 1 (Viz) (SB) the majority held that as the Finance Bill proposed the words "amount credited or paid" and as the Finance Act used the words "amounts payable", s. 40(a)(ia) could only apply to amounts that are outstanding as of 31st March and not to amounts already paid during the year. This view is not correct for two reasons. Firstly, a strict reading of s. 40(a)(ia) shows that all that it requires is that there should be an amount payable of the nature described, which is such on which tax is deductible at source but such tax has not been deducted or if deducted not paid before the due date. The provision nowhere requires that the amount which is payable must remain so payable throughout during the year. If the assessee's interpretation is accepted, it would lead to a situation where the assessee who though was required to deduct the tax at source but no such deduction was made or more flagrantly deduction though made is not paid to the Government, would escape the consequence only because the amount was already paid over before the end of the year in contrast to another assessee who would otherwise be in similar situation but in whose case the amount remained payable till the end of the year. There is no logic why the legislature would have desired to bring about such irreconcilable and diverse consequences. Secondly, the principle of deliberate or conscious omission is applied mainly when an existing provision is amended and a change is brought about. The Special Bench was wrong in comparing the language used in the draft bill to that used in the final enactment to assign a particular meaning to s. 40(a)(ia). Accordingly, Merilyn Shippingdoes not lay down correct law. The correct law is that s. 40(a)(ia) covers not only to the amounts which are payable as on 31th March of a particular year but also which are payable at any time during the year.In view of the above judgement of Gujarat High court, All AO are requested to file MA in every case where ITAT has allowed relief to the assessee based on special Bench evve if appeal u/s 260A is pending. This will help you to collect substantail amount of revenue.
Regards,
Pawan Singla
BA (Hon's), LLB
Audit Officer
----- Forwarded Message -----
From: "info@cliofindia.com" <info@cliofindia.com>
To: newsletter@cli.in
Sent: Tuesday, 7 May 13 10:44 AM
Subject: Pre-Print Highlights of CC from CLI
From: "info@cliofindia.com" <info@cliofindia.com>
To: newsletter@cli.in
Sent: Tuesday, 7 May 13 10:44 AM
Subject: Pre-Print Highlights of CC from CLI
 COMPANY CASES (CC) HIGHLIGHTS
|
__._,_.___
No comments:
Post a Comment