Commissioner Of Income Tax v. Smt.D.Saradhamani

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.41, 366 and 367 of 2010 Commissioner of Income Tax, Salem.

.. Appellant in all the appeals vs.

D.Saradhamani .. Respondent in T.C.(A) No.41 of 2010 J.Parameswari .. Respondent in T.C.(A) No.366 of 2010 D.Manjula .. Respondent in T.C.(A) No.367 of 2010 Appeals filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal "D" Bench, Chennai dated 17.09.2008 passed in ITA Nos.1899/Mds/2006, and dated 09/05/2008 in I.T.A.No. 1951/Mds/2006 and 1952/Mds/2006 against the order passed by the Commissioner of Income Tax(Appeals) dated 30/05/2006 in ITA No.275/05-06 for the Assessment Year 1994-95, against the order passed by the Commissioner of Income Tax (Appeals) dated 31/01/2000 in ITA No.17-c/99-2000 against the order passed by the Commisioner of Income Tax (Appeals) dated 31/01/2000 in ITA No.18-c/99-2000 respective.y For Appellant :Mr.T.R.Senthil Kumar and Mr.S.Rajesh in all the appeals For Respondent:Mr.Philip George and Mr.M.P.Senthilkumar, in all 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 assessment year 1994-1995:

" T.C.(A) No.41 of 2010: Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in cancelling the penalty of Rs.4,12,160/- levied u/s 271(1)(c) of the Income Tax Act in respect of concealed income shown as NRI gifts and which were admitted in the return filed in response to notice u/s 148 and that too after discovery of evidence in a search?

T.C.(A) Nos.366 and 367 of 2010: Whether on the facts and circumstances of the case, the Tribunal was right in deleting the penalty on the ground that the said undisclosed amounts were offered to tax subsequent to issue of notice under Section 148?" 2.Heard the learned counsel appearing for the appellant. There is no representation on behalf of 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.

...........................

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 V) //True Copy// Sub Assistant Registrar mmi To The Income Tax Appellate Tribunal, "D" Bench, Chennai.

+1cc to Mr.T.R.Senthilkumar, Advocate Sr.42199 +1cc to Mr.Philip George, Advocate Sr.41595 T.C.(A).Nos.41, 366 and ss[co] srgm 18/07/2018