Ita/17/2012 Commissioner Of Income Tax, Kolkata, Central – I v. Before

ORDER IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE O – 43 ITA/17/2012COMMISSIONER OF INCOME TAX, KOLKATA, CENTRAL – IVERSUSSMT. RITA DEVI AGARWALLA BEFORE: The Hon'ble Justice SURYA PRAKASH KESARWANI The Hon'ble Justice RAJARSHI BHARADWAJ Date : 15[th ]January 2024. Appearance:Mr. Amit Sharma, Advocate… for appellant.Mr. Saumya Kejriwal, AdvocateMs. Ananya Rath, AdvocateMr. Navin Mittal, Advocate… for respondent. 1.Heard learned counsel for the parties. 2.This appeal relates to assessment years 2003-04, 2004-05, 2005-06,2006-07 and 2007-08. The tax effect involved in the five appeals before theTribunal are Rs.10,89,474/- for the assessment year 2003-04;Rs. 5,04,641for the assessment year 2004-05; Rs. 44,60,617/- for assessment year 2005-06, Rs.7,71,050/- for assessment year 2006-07 and Rs.6,75,056/- forassessment year 2007-08. Thus, the tax effect in the aforesaid fiveassessment years involved in this appeal are much below the tax limitprovided for filing the appeal under Circular No.17/2019 dated 08.08.2019. 3.Learned counsel for the appellant submits that this case falls underthe exception given in the said circular inasmuch as the controversy ofpenny stock is involved. He admits that this appeal was filed in the year2011 and not after the circular dated 16.09.2018 carving out exceptions forfiling appeal in matters of penny stock even though the tax effect is belowthe limit provided in the circular for filing appeal by the Income TaxDepartment. 4. We find that similar issue arose before a co-ordinate Bench of thisCourt in ITAT/163/2021 (Principal Commissioner of Income Tax-I, Kolkatavs. Rakesh Kumar Khemuka) which was dismissed by order dated20.07.2012 observing as under : “In terms of the above direction the Principal Commissioner ofIncome Tax (Judicial), Kolkata has addressed the learned StandingCounsel for the appellant by letter dated 3[rd] March, 2022. Along withthe said letter, notes on submission dated 7[th] March, 2022 has beenappended. The said notes of submission reads as follows : “Notes on Submissions 1.The issue before the Hon’ble High Court is seen to be theretrospective or prospective applicability of Central Board of DirectTaxes Circular No. 23 dated 06.09.2019 and Central Board of DirectTaxes OM dated 16.09.2019 by which exception to the tax effectwas allowed for filing appeals in Long Term Capital Gain/PennyStock in ITAT in respect of appeals which were dismissed by ITAT.retrospective or prospective applicability of Central Board of DirectTaxes Circular No. 23 dated 06.09.2019 and Central Board of DirectTaxes OM dated 16.09.2019 by which exception to the tax effectwas allowed for filing appeals in Long Term Capital Gain/PennyStock in ITAT in respect of appeals which were dismissed by ITAT. 2.I am therefore to submit that in view of the facts of the impugnedmatter, the exception to penny stock cases from the stipulation ofmatter, the exception to penny stock cases from the stipulation of monetary limit would be indeed operable from 16.09.2019 that isonly in the cases where appeal was filed on or after 16.09.2019.”In the light of the stand taken by the Department, the monetary limitwould be operable from 16[th] September, 2019, that is, only in caseswhere appeal was filed on or after 16[th] September, 2019. In the light of the above clarification, we find that the order passedby the learned Tribunal does not call for any interference.Accordingly, we hold that there is no substantial question of lawarising for consideration in these appeals and they are dismissed. With the dismissal of the appeals, the connected applications alsostand dismissed.” 5. 5.Respectfully following the judgment of the co-ordinate Bench in thecase of Rakesh Kumar Khemuka (supra) this appeal (ITA 17/2012) is alsodismissed. (SURYA PRAKASH KESARWANI, J.) As. (RAJARSHI BHARADWAJ, J.)