The Commissioner Of Income Tax v. Shri.A.Sundaralingam

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 19.07.2018 Coram THE HONOURABLE MR. JUSTICE M.M.SUNDRESH and THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH T.C.(A). No.611 of 2010 The Commissioner of Income Tax - I, Coimbatore.

.. Appellant/Respondent vs.

A.Sundaralingam .. Respondent/Appellant Appeal filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal "A" Bench, Chennai dated 20.11.2009 passed in I.T.A. No.469/Mds/2007 for the Assessment Year 2003-04 against th order of the Commissioner of Income Tax(Appellas) I Coimbatore dated 12.01.07 made in Appeal No.104/06/07 for the Assessment Year 2003/04 against the order of Income Tax Department, Assistant Commissioner of Income Tax, Circle III Coimbatore dated 30/03/06 made in ACLPS7695G/Individual for the Assessment Year 2003-04. For Appellant :

Ms.K.G.Usharani for Mr.T.R.Senthilkumar For Respondent :

No appearance

JUDGMENT

(Judgment of the Court was delivered by M.M.SUNDRESH, J.) The Revenue has filed this appeal by formulating the following substantial question of law in respect of the assessment year 2003-2004:

"Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in deleting the addition of Rs.15 lakhs in the hands of the assessee by the Assessing Officer, even though the assessee had not proved any of his pleas and never

produced any evidence, justifying the retraction of the earlier statement made under Section 132(4) of the Income Tax Act, 1961 during the survey under Section 133A?"

2.Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 3.Learned counsel appearing for the appellant submits that the issue involved in this appeal 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 23.04.2018, by taking note of the Circular Instructions issued by the Central Board of Direct Taxes (CBDT) and also taking note of the submissions of the Revenue, the relevant portions of which are quoted hereunder:

"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, this tax case appeal is dismissed on the ground of low tax effect, leaving the substantial question of law open, which has been framed for consideration. No costs. Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar

mmi To 1.The Income Tax Appellate Tribunal, "A" Bench, Chennai.

2.The Commissioner of Income Tax I, Coimbatore. 3.Income Tax(Appeals) I, Coimbatore.

4.Income Tax Department, Assistant commissioner of Income Tax Circle III, Coimbatore.

5.The Assistant Registrar, Income Tax Appellate Tribunal, III Floor, Rajaji Bhavan, Besant Nagar, Chennai-90 +1cc to M/s.T.R.Senthil Kumar, Advocate sr.no.48251 T.C.(A).No.611 of 2010 skv(co) nr 03/08/2018