The Commissioner Of Income v. Dr.R.A.Ganesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.06.2018 Coram THE HONOURABLE MR. JUSTICE M.M.SUNDRESH and THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH T.C.(A). Nos.212 and 392 of 2010 The Commissioner of Income Tax, Coimbatore.
.. Appellant in both the appeals vs.
Dr.R.A.Ganesan .. Respondent in T.C.(A) No.212 of Dr.K.Geetha .. Respondent in T.C.(A) No.392 of PRAYER: Appeals filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal "C" Bench, Chennai dated 29.05.2009 passed in I.T. (S.S.) A. Nos.86/Mds/2008 and 87/Mds/2008, Preferred against the order dated 25.08.2008 made in IT. A. No.208C/2005-06 and ITA.206C/2005-06 by the Commissioner of Income Tax (Appeals), Coimbatore, against the order dated 03.06.2005 made in AFYPG4039G & AFYPG4089G by the assistant Commissioner of Income Tax, Central Circle IV, Coimbatore.
For Appellant :
Mr.T.R.Senthil Kumar and Mr.S.Rajesh in both the appeals For Respondent :
Mr.A.S.Sriraman for Mr.S.Sridhar in both the appeals
COMMON JUDGMENT (Judgment of the Court was delivered by M.M.SUNDRESH, J.) The Revenue has filed these appeals by raising the following substantial question of law in respect of the block assessment year 1996-1997 to 2002-2003 till 06.03.2002: "Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in cancelling the penalty levied under Section 158BFA(2) of the Income Tax Act, 1961 is valid?" 2.Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 3.Learned counsel appearing for the appellant submits that the issue involved in these appeals viz., low tax effect has already been considered by this Court in T.C.A. No.1528 of 2007 on 06.06.2018 and the following order has been passed: "3.
It may not be necessary for us to decide the substantial question of law framed for consideration, on account of the low tax effect in this appeal. This issue was considered by us in the case of Commissioner of Income Tax vs. N.Meenakshisundaram in T.C.(A) Nos.868 & 869 of 2008 dated 23.04.
"10. An argument was advanced by the learned Senior Standing Counsel for the Revenue that the circular can have effect only, while filing the appeal and not while hearing of the appeal and would have no impact on the appeals, which are admitted and pending. However, in the Circular issued in the year, 2015, it has been made clear that, it will apply to pending appeals as well. In respect of the earlier circulars, it would be relevant to take note of the decision of the Hon'ble Supreme Court in Mathew M. Thomas Vs Commissioner Of Income-Tax [(1999) (III) ELT 4 SC] wherein, the Hon'ble Supreme Court, while considering the effect of Circular No.445, dated 16.05.1986, pointed out that Circular No. 455 dated 16.5.1986 issued by the C.B.D.T. is applicable to all pending proceedings which have
not attained finality under Section 269 I of the Act as defined in the explanation to the said Section.
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14. Therefore, the Circular has to be understood as part of the litigation policy of the Government of India to reduce the litigation and to bring down the number of Appeals, which are pending before the Court and also ensure that the Appeals are not preferred by the Department without proper examination of the case on merits. ...........
15. As per the Circular/Instruction issued by CBDT, the present Appeal should be not pressed by the Revenue. If, at the time of filing of the Appeal, decision has to be taken whether to file an Appeal or not and the Authority by due application of mind and bearing the two caveats laid down by the Hon'ble Supreme Court, in Surya Herbal Ltd., case (supra) should take a decision. In cases, where, the Appeals are pending before the Court, appropriate Officer has to take a decision. In the instant case, it appears that, no such specific instruction is issued to Mr.M.Swaminathan, the learned Senior Standing Counsel to withdraw the Appeal, nor, can we compel the learned counsel to withdraw the Appeal.
16. Having held that the Circular issued by CBDT is applicable to the case on hand and the tax effect being less than the threshold limit prescribed in the Circular, we dismiss the present Appeal by applying the law laid down by the Hon'ble Supreme Court, in Surya Herbal Ltd., case (supra), as the two caveats mentioned thereunder does not arise in the instant case."
4.By applying the above decision, we dismiss this tax case (appeal) on the ground of low tax effect and in terms of the above referred decision, leave the substantial question of law, which has been framed for consideration. No costs."
4.In such view of the matter and in view of the circular issued by the Central Board Direct Taxes in Circular No.21/2015 dated 10.12.2015, these tax case appeals are dismissed on the ground of low tax effect, leaving the substantial questions of law open, which have been framed for consideration. No costs. Sd/- Assistant Registrar(CS-ix) //True Copy// Sub Assistant Registrar mmi To
1. The Income Tax Appellate Tribunal, "C" Bench, Chennai.
2. The Commissioner of Income Tax, Coimbatore.
3. The Assistant Commissioner of Income Tax, Central Circle IV, Coimbatore +2cc to Mr.S.SRIDHAR, Advocate, S.R.No.41310 & 41309 +1cc to Mr.T.R.SENTHILKUMAR, Advocate, S.R.No. 42200 T.C.(A).Nos.212 and 392 of 2010 SSV(CO) TR(03/08/2018)