Parampara Builders & Developers P.Ltd, ... vs Department Of Income Tax

ी संजय अरोड़ा, लेखा सद य के सम एवं ी अ मत शु ला, या यक सद य ।

BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA, JM

आयकर अपील सं./I.T.A. No.1681/Mum/2011 ( नधा रण वष / Assessment Year: 2002-03) ITO-9(2)(4), Parampara Builders & Developers Room No. 216B, Aayakar Bhavan, Pvt. Ltd., बनाम/ M. K. Road, Mumbai-400 020 7C, Senior Estate, Vs. Parsi Panchayat Road, Andheri (E), Mumbai-400 059 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAACP 8312 N (अपीलाथ# /Appellant) : ($%यथ# / Respondent)

अपीलाथ# क& ओर से / Appellant by : Shri Parmanand J

$%यथ# क& ओर से/Respondent by : None

सनु वाई क& तार+ख / : 18.11.2014 Date of Hearing घोषणा क& तार+ख / : 30.01.2015 Date of Pronouncement

आदे श / O R D E R Per Sanjay Arora, A. M.:

This is an Appeal by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-20, Mumbai ('CIT(A)' for short) dated 23.12.2010, directing the levy of penalty u/s.271(1)(c) of the Income Tax Act, 1961 ('the Act' hereinafter) for the assessment year (A.Y.) 2002-03 vide order dated 26.05.2010.

2. None appeared for and on behalf of the assessee-respondent when the appeal was called out for hearing. We observe this to be the continuing feature of the hearing in the instant case; there being neither any appearance nor any application for adjournment on the different dates for which the matter was posted for hearing. In fact, the notice of 2 ITA No. 1681/Mum/2011 (A.Y. 2002-03) ITO vs. Parampara Builders & Developers Pvt. Ltd.

hearing, sent per registered post at the address specified in Form-36, which we further find to be the same as stated in Form No.35 filed by the assessee before the first appellate authority, has come back unserved. No substitute address has been communicated by the assessee, with there being also no letter of authority on record. Under the circumstances, we proceeded to decide the appeal after hearing the appeal before us.

Arguments

3. At the very outset, it was observed by the Bench that the Revenue's appeal, in-as- much as it disputes the cancellation of the penalty in the sum of Rs.3,36,107/-, may not be maintainable in view of section 268A prescribing monetary limit for the filing of appeals by the Revenue. The ld. Departmental Representative (DR), on being so enquired by the Bench, would admit to the amount in dispute being below Rs.4 lacs, i.e., the threshold amount as specified by the Board per its latest Instruction (No.5 of 2014 dated 10.07.2014) issued u/s.268A of the Act. He, however, claimed that the latest Instruction clearly states, vide para 11 thereof, that the same shall apply to appeals filed on or after 10.07.2014 and, further, that the appeals filed before that date would continue to be covered, on this subject, by the Instruction as operative at the time the appeal was filed. The appeal in the instant case was filed on 01.03.2011, so that the same would be covered by Instruction No. 3 of 2011 dated 09.02.2011, which specifies the said limit at Rs.3 lacs, so that the appeal is maintainable with reference to s.268A of the Act read with the relevant Board's Instruction. He was, upon this, required by the Bench to place on record the copies of the earlier Instructions by the Board u/s.268A, which stands inserted on the statute by Finance Act, 2008 (w.r.e.f. 01.04.1999). The same, being Instruction No. 5/2008 dated 15.05.2008 and Instruction No.3/2011 dated 09.02.2011, were so placed, and found to bear a similar language, i.e., as vide para 11 of Instruction No.5/2014. How could then, the Bench observed, could it take a different view in the matter? He, though conceding to the same, i.e., the likeness of the language, so that a different view could not be taken by us on the basis of a change in language, would yet vehemently defend the Revenue's case. The right to appeal is a statutory right and, therefore, cannot be curtailed 3 ITA No. 1681/Mum/2011 (A.Y. 2002-03) ITO vs. Parampara Builders & Developers Pvt. Ltd.

other than by and under the statute itself. The earlier decisions by the hon'ble court, as in the case of CIT vs. Camco Color Co. [2002] 254 ITR 565 (Bom) and CIT vs. Pithwa Engg. Works [2005] 276 ITR 519 (Bom), were rendered when section 268A was not on the statute-book. Among the first such Instructions by the Board was Instructions No. 1979 dated 27.03.2000. This was followed by Instruction No. 1985 dated 29.06.2000, explaining the same, and others; the subsequent Instructions superseding the preceding ones, stipulating a higher threshold limit. The same contains the words 'This Instruction will come into effect from 01/04/2000.' This was interpreted by the hon'ble court to mean that the Instruction shall apply even to the pending appeals. The basis of the decisions by the hon'ble court was the nominality of the tax effect of the amount in dispute, and which should, therefore, not engage the mind as well as the time and resources of the higher courts. The subsequent decisions by the hon'ble court have, however, followed the same without noticing the change in the clear and specific words of the Instruction per which the Revenue has placed a constraint upon itself in filing appeals before the higher appellate forums. Very recently, the hon'ble apex court in CIT vs. Virgo Marketing (P.) Ltd. (in Appeal (Civil) No. 2012/CC 21705/2011 dated 06.01.2012), though dismissing the SLP filed by the Revenue against the decision by the hon'ble delhi high court, directed it to move the hon'ble court for a review of its' decision dismissing the Revenue's appeal in view and in light of para 11 of the Board's Instruction No. 3 of 2011 dated 09.02.2011. The Revenue has been, as would be self- evident, as a matter of policy, itself revising the threshold limit that would obtain for its appeals from time to time. Accordingly, traveling outside the clear mandate of an Instruction/s, which postulates the date with effect from which it would apply, is incorrect both on facts and in law.

4. We have heard the party before us, and perused the material on record.

Section 268A: A background 4.1 The underlying objective of the Board's instructions is to reduce litigation. Section 268A provides the legislative sanction to the said objective; the Board's Instructions 4 ITA No. 1681/Mum/2011 (A.Y. 2002-03) ITO vs. Parampara Builders & Developers Pvt. Ltd.

being not binding on the appellate authorities, while at the same time protecting the right of the Revenue to file or not to file an appeal, reference, etc. The Board has been in fact issuing Instructions from time to time, setting out the monetary limits below which an appeal may not been filed, subject to the exceptions listed in those Instructions. However, being merely administrative circulars, this led to a controversy as to whether the Revenue's appeal filed in contravention thereto was valid or not. The validity of an appeal, it was the predominant view of the courts, would not be lost because of the smallness of the amount involved. Having been filed, the appellate authorities were bound to take cognizance thereof and decide the issue raised in accordance with law (refer; inter alia, CIT vs. Abhishek Industries Ltd. [2006] 286 ITR 1 (P&H); Jugal Kishore Arora vs. Dy. CIT [2004] 269 ITR 133 (All); Rani Paliwal vs. CIT [2004] 268 ITR 220 (P & H); CIT vs. P.S.T.S. Thiruvirathnam & Sons [2003] 261 ITR 406 (Mad); CIT vs. Blaze Advertising (Delhi) (P.) Ltd. [2002] 255 ITR 460 (Del)). The exceptions, listed in the Instructions, again, as per the unanimous view, were to be honored, even as some courts required the Revenue to specify the same in the memo of appeal and/or by way of an affidavit to the effect that the Revenue's appeal is covered by an exception, specifying the same. Section 268A, however, settles this controversy, so that the Instruction is binding, subject of-course to the terms of the instruction itself, ratifying thus, in effect, a series of decisions by the high courts, particularly by the jurisdictional high court, beginning with Camco Color Co. (supra). The law, however, would apply only where the circular does not make it clear that it is applicable for appeals filed before or after specified dates. The recent circulars make them clearly prospective, so as to be applicable for appeals with reference to the date of filing of the appeal. It is this that has led to the present controversy.

The Issue 4.2 Coming to the facts of the instant appeal, the same was without doubt filed on 01.03.2011, and its appeal effect is Rs.3.36 lacs. The question, therefore, is whether it would be covered by Instruction No.3/2011 dated 09.02.2011 or by Instruction 5 ITA No. 1681/Mum/2011 (A.Y. 2002-03) ITO vs. Parampara Builders & Developers Pvt. Ltd.

No.5/2014 dated 10.07.2014. The relevant clause of the Instructions issued by the Board u/s.119 r/w s. 268A is as under:

1) Instruction No.5/2008 dated 15.05.2008 '11. This instruction will apply to appeals filed on or after 15th of May 2008.

However, the cases where appeals have been filed before 15th May 2008 will be governed by the instructions on this subject, operative at the time when such appeal was filed.'

2) Instruction No.3/2011 dated 09.02.2011 '11. This instruction will apply to appeals filed on or after 9th February, 2011. However, the cases where appeals have been filed before 9th February, 2011 will be governed by the instructions on this subject, operative at the time when such appeal was filed.'

3) Instruction No.5 of 2014 dated 10.07.2014 '11. This instruction will apply to appeals filed on or after 10th July, 2014. However, the cases where appeals have been filed before 10th July, 2014 will be governed by the instructions on this subject, operative at the time when such appeal was filed.'

Further, each Instruction also contains the date from which it is to come into effect, and which in each case is the date of its' issue.

Discussion 4.3 As a plain reading would show, it is the Instruction No.3/2011 dated 09.02.2011 which should apply in the instant case; the monetary limit for appeals before the appellate tribunal per which is at Rs.3 lacs. Again, without doubt, the right to appeal is a statutory right, and it is trite law that vested right cannot be divested. Even granting so, the same could only be on the basis, and in terms, of or by an express provision of law. Section 268A of the Act clearly requires the appellate forums, being the appellate tribunal, high court and supreme court, to, while deciding the appeals by the Revenue preferred before them, have regard to, inter alia, the directions, instructions, etc. by the Board prescribing the monetary limits for filing its appeals before the said forums. The said directions, instructions, etc. thus assume part of and have the force of law. Further, the monetary limit prescribed is for regulating the filing of appeals or references by an income tax 6 ITA No. 1681/Mum/2011 (A.Y. 2002-03) ITO vs. Parampara Builders & Developers Pvt. Ltd.

authority under the Act. Could, therefore, it be said that the competent authority, in filing the instant appeal, has acted in contravention of section 268A? It is the prerogative of the Revenue to fix the monetary limits for the purpose of s. 268A from time to time, as also the date (time) from which the revised limit shall apply. In fact, section 268A(4) requires the appellate tribunal or court to have regard of not only the Board's Instructions, etc., but also the circumstances under which the appeal or reference has or has not been filed in a case. The Board has, as it appears to us, as a matter of policy, internalized the aspect of the monetary impact of the Revenue's appeals, enhancing the said limit from time to time

- the time being not when the appeal is finally heard, which could vary from a few days to few years of its' filing, but the date of filing itself, which is in conformity with the object of section 268A, which seeks to regulate the filing of appeals by the Revenue. These aspects and considerations, sought to be brought forth by the ld. DR through his arguments before us, are not without force, and have in fact found support and acceptance of several high courts, including by the full bench of the hon'ble Punjab & Haryana high court [in CIT vs. Varindera Construction Co. [2011] 331 ITR 449 (P&H) (FB)], holding that there was no scope for reading the Instruction as being applicable to pending appeals.

Decision 4.4 Whatever be the merits of the Revenue's case, the appellate tribunal as a lower court is bound by the decisions by the hon'ble jurisdictional high court, which has taken a consistent view in favour of the Instructions by the Board in the matter, both prior and subsequent to section 268A, brought on the statute by Finance Act, 2008, being retrospective, so that they shall apply to appeals by the Revenue filed prior to the date of their issue and coming in to effect. Put differently, shall apply to pending appeals. In other words, the monetary limit prescribed per a circular/instruction issued u/s. 268A that shall apply qua an appeal is that in force at the time the appeal is heard and not when it is filed. Reference in this context be made to the decisions by the hon'ble court, as in the case of CIT vs. Varsha Dilip Kolhe [2013] 350 ITR 384 (Bom); CIT v. Vitessee Trading Ltd. [2011] 331 ITR 433 (Bom); and CIT vs. Madhukar K. Inamdar (HUF) 7 ITA No. 1681/Mum/2011 (A.Y. 2002-03) ITO vs. Parampara Builders & Developers Pvt. Ltd.

[2009] 318 ITR 149 (Bom). The decision by the hon'ble apex court in Virgo Marketing (P.) Ltd. (supra) would also be of no assistance to the Revenue. All that can be inferred from the said order is that the apex court was of the view that clause 11 of the relevant Instruction had not been brought to the notice of, or otherwise considered by, the hon'ble high court. However, as afore-stated, this aspect of the matter stands considered by the hon'ble jurisdictional high court, and its decisions stand rendered in conscious regard of the relevant clause of the Instruction/s. In fact, per its decision in the case of Madhukar K. Inamdar H.U.F. (supra), wherein the hon'ble court was seized of the Boards' Instruction No.5/2008 dated 15.05.2008, the first Instruction issued post the introduction of sec.268A on the statute, it expressed its' clear disagreement with the injunction as made by the Board per its said Instruction, stating that it found no logic behind the same, so that the same shall apply equally to pending (undisposed) appeals. The only recourse therefore for the Revenue would be to pursue the matter before the hon'ble court under review jurisdiction or before the hon'ble apex court, as it did in the case of Virgo Marketing (P.) Ltd. (supra), and not before the tribunal.

We, therefore, though have given a faithful account of the proceedings before us, as well as the rationale guiding the Revenue's case, as sought to be made before us, which has also found favour with some high courts, clarify that the wisdom of a subordinate court has to necessarily submit to that of the higher court, which stands expressed unequivocally per its several decisions by the hon'ble jurisdictional high court. We, accordingly, are unable to accept the Revenue's contentions and pleadings, and its appeal must fail.

5. In the result, the Revenue's appeal is dismissed in limine.

Order pronounced in the open court on January 30, 2015 Sd/- Sd/- (Amit Shukla) (Sanjay Arora) या यक सद य / Judicial Member लेखा सद य / Accountant Member मुंबई Mumbai; 0दनांक Dated : 30.01.2015 व. न.स./Roshani, Sr. PS 8 ITA No. 1681/Mum/2011 (A.Y. 2002-03) ITO vs. Parampara Builders & Developers Pvt. Ltd.

आदे श क# $ त&ल'प अ(े'षत/Copy of the Order forwarded to : 1. अपीलाथ# / The Appellant 2. $%यथ# / The Respondent 3. आयकर आय ु त(अपील) / The CIT(A) 4. आयकर आय ु त / CIT - concerned 5. 3वभागीय $ त न6ध, आयकर अपील+य अ6धकरण, मंब ु ई / DR, ITAT, Mumbai 6. गाड: फाईल / Guard File आदे शानस ु ार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai