Commissioner Of Income Tax-Iii v. M/S.Shasun Chemicals & Drugs
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.855 of 2010 Commissioner of Income Tax III, Chennai.
.. Appellant vs.
M/s.Shasun Chemicals and Drugs Ltd., No.3, Duraiswamy Road, T.Nagar, Chennai - 17.
.. Respondent Appeal filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal "A" Bench, Chennai dated 08.01.2010 passed in I.T.A.
No.1490/Mds/2009.
Appeal against the order dated 13/08/2009 of the the assessing Officer under section 250 of the I.T.Act giving effect to the order of the Commissioner of Income Tax (Appeals) against the Assessment order for the Assement year 1998-99 under section 143
(3) of R.W.S 254 against the order of the Commissioner of Income Tax Appeals in I.A.No. 7616/MDS/2006-07 dated 18/07/2008. For Appellant :
Ms.K.G.Usharani for Mr.T.R.Senthil Kumar For Respondent :
Mr.A.S.Sriraman for Mr.S.Sridhar
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 1998-1999:
"Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in upholding the order of the Commissioner of Income Tax (Appeals) directing the allowances of weighted deduction u/s.35(2AB) of Rs.1,02,87,094/- even though there was no such claim in the return filed or in the
original appeal, by entertaining the claim in the appeal against the order giving effect to the appellate order, treating the said appeal as a miscellaneous petition?"
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 VII) //True copy// Sub Assistant Registrar mmi
To 1.The Registrar, Income Tax Appellate Tribunal, "A" Bench, Chennai.
2. The Assistant Commissioner of Nungambakkam, Income Tax, Chennai-34.
+1cc to Mr.T.R.Senthil Kumar, Advocate SR.No. 48249 T.C.(A).No.855 of 2010 KS(CO) GN(02/08/2018)