TaxTMI 
TaxTMI 
2017 (11) TMI 956
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....32/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2003-04 I.T.A. No. 2133/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2007-08 I.T.A. No. 2134/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2010-11 I.T.A. No. 2135/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2011-12 I.T.A. No. 2136/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2012-13 I.T.A. No. 2137/Kol/2016 04.08.2016 143(3) of Income Tax Act, 1961 18.12.2009 2. ITA No. 2131/Kol/2016 - Asst Year 1998-99 - Revenue Appeal During the course of hearing, the ld AR stated that the total addition made by the ld AO in this year was only Rs. 4,12,170/- where the tax effect is only Rs. 92,329/-. We find that the same falls within the low tax effect circular issued by the CBDT vide Circular No. 21/2015 dated 10.12.2015, wherein the CBDT had categorically stated as under:- 3. Henceforth, appeals / SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:- S.No. Appeals in Income Tax matters Monetary Limit (in Rs) 1 Before Appellate Tribunal 10,00,000/- 2 Before Hi....
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.... issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: (a) Where the Constitutional Validity of the provisions of an Act or Rule are under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit Objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets / bank accounts. 10. This instruction will apply retrospectively to pending appeals and appeals to be filed henceforth in High Courts/ Tribunals. Pending appeals below the specified tax limits in para 3 above may be withdrawn / not pressed. Appeals before the Supreme Court will be governed by the instructions on this subject, operative at the time when such appeal was filed. We find that the Circular makes it very clear that the revised monetary limits shall apply retrospectively to pending appeals also. We find that the Circular is binding on the tax authorities. This position has been confirmed by the Hon'ble Apex Court in the case of Commissioner of Cust....
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....ing , the assessee was claiming exemption of its income u/s 10(22) of the Act proclaiming it to be an educational institution not existing for the purpose of profit upto Asst Year 1998-99. This claim of exemption u/s 10(22) of the Act was upheld by the order of this tribunal in ITA Nos. 1728 to 1731/Cal/1999 & ITA Nos. 519 to 522/Cal/1999 dated 11.7.2002 for Asst Years 1986-87 to 1993-94 respectively. Against this order of tribunal, the revenue preferred an appeal before the Hon'ble Calcutta High Court which dismissed the same by holding that no substantial question of law was involved in these appeals vide its order in ITA No. 23 of 2003 dated 14.8.2006. 4.2. Meanwhile this tribunal for the Asst Years 1999-2000 and 2000-01 in ITA Nos. 1806 & 1807/Kol/2002 dated 11.5.2004 had negatived the contention of the assessee that it is an educational institution and brought the surplus to tax. Against this order, the assessee had preferred an appeal before the Hon'ble Calcutta High Court and the same was admitted and pending. 4.3. The ld AO for the impugned asst years i.e ( AYs 02-03 , 03-04, 07-08 , 10-11 , 11- 12 & 12-13) had observed that the assessee is not an educational institution ....
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....observation / issue /ground that has been held / decided against him by the ld CITA. In this regard, he placed reliance on the decision of the co-ordinate bench of this tribunal in the case of DDIT(E) vs S.K.S.Educational and Social Trust in ITA No. 381/Kol/2014 dated 31.5.2017 wherein it was held as under:- "5. After hearing the rival contentions, I find that the co-ordinate bench of the Tribunal in the case of Assistant Commissioner of Income Tax Circle-29, Kolkata vs. Ricky Chandra (supra), has at para 7, held as follows: 7. We have heard the rival submissions and perused the records of the case. The Hon'ble Supreme Court in the case of CIT, Madras vs. S. Nelliappan [66 ITR page 722] has observed as under: In hearing an appeal the Tribunal may give leave to the assessee to urge grounds not set forth in the memorandum of appeal and in deciding the appeal the Tribunal is not restricted to the leave of the Tribunal (Head Note). Further, in NTPC case (supra), Hon'ble Supreme Court observed as under: The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. ........... Ther....
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....t is because that they have worked for the society. Accordingly it was held that the assessee society could not be considered as a business organization. We find that against this order , the revenue had preferred further appeal before the Hon'ble Calcutta High Court which was dismissed vide order in ITA No. 23 of 2003 dated 14.8.2006 on the ground that no substantial question of law was involved in the said appeals. It is already well settled that eventhough the Hon'ble Calcutta High Court had held that no substantial question of law was involved in these appeals, it tantamounts to exercise of the appellate powers by the Hon'ble High Court and the tribunal order stands confirmed and the order of the lower authorities gets merged with the order of the Hon'ble High Court. We would like to place reliance in this regard on the decision of the Hon'ble Gujarat High Court in the case of Nirma Industries Ltd vs DCIT reported in (2006) 283 ITR 402 (Guj) wherein it was held that :- EFFECT OF DISMISSAL OF A TAX APPEAL BY HIGH COURT HOLDING THAT NO SUBSTANTIAL QUESTION OF LAW ARISES. While hearing an appeal, even for deciding whether a substantial question of law arises or not from the or....
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....60A is the appellate jurisdiction, it has no discretionary jurisdiction which would permit the High Court to prevent a party from filing an appeal. There is no provision which requires seeking of leave to file an appeal, nor is there any provision or rule whereby the High Court can grant or refuse leave to file an appeal. As a matter of fact that the appeals are filed with the registry, and after completion of the necessary formalities, including compliance with the rules of the High Court, the appeal is numbered as such and is placed for hearing only as an appeal, whereas before the Apex Court what is placed at the initial stage is a special leave petition seeking permission to file appeal. In absence of any such powers being available to the High Court under section 260A, the High Court cannot prevent any party from filing of appeal and has to hear the appeal itself when the same is notified for hearing [Paras 14 and 15] In case where an order of a subordinate forum is carried in appeal, the appellate court may - (i) reverse the order under appeal, (ii) modify the order under appeal, (iii) merely dismiss the appeal and, thus, confirm the order under appeal without any modificat....
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....f merger is founded on principle of propriety in the hierarchy of justice delivery system, the underlying logic being that there cannot be more than one operative order governing same subject-matter at a given point of time. The only caveat to the doctrine of the merger is that the content or the subject-matter of challenge before the superior forum has to be borne in mind. [Para 20] In a case where the appeal is dismissed on account of - (i) being barred by limitation, (ii) being defective in nature, (iii) the appellant having no locus standi to prefer appeal, it cannot be stated that there is merger of the order of the subordinate forum in the order of the superior forum. The reason is: there is no 'order' made by the superior forum, i.e., on merits, the controversy between the parties has not been gone into by the appellate forum. But, in a case where the High Court comes to the conclusion that no substantial question of law arises on a particular issue, it cannot be stated that when the appeal is dismissed by the High Court, the subject-matter of the controversy between the parties has not been dealt with by the High Court. [Para 22] In the light of above and more particula....