Itta/90/2017 Of The Commissioner Of Income Tax-Iv v. Oil Country Tubular Ltd

THE HON’BLE SRI JUSTI CE SANJAY KUMAR AND THE HON’BLE SRI JUSTI CE GUDI SEVA SHYAM PRASAD I .T.T.A.No.90 of 2017 ORDER:(per SK,J) This appeal by the Revenue under Section 260A of the Income-tax Act, 1961 (for short, ‘the Act of 1961’), raises the following substantial question of law for consideration: ‘Whether on the facts and in the circumstances of the case, the Tribunal is correct in law in dismissing the appeal on the ground that the tax involved is below the monetary limit fixed by the Central Board of Direct Taxes (CBDT)?’ Perusal of the common order dated 27.02.2008 passed by the Income Tax Appellate Tribunal, Hyderabad Bench ‘B’, Hyderabad, insofar as it pertains to I.T.A.No.466/Hyd/2005, from which the present appeal arises, reflects that the Tribunal dismissed the appeal of the Revenue on the short ground that the tax effect in the appeal under consideration before it was ‘nil’ and therefore, the Revenue was not entitled to prefer an appeal where the tax effect was less than the limit prescribed by the CBDT in its instructions. Significantly, the Tribunal mentioned that it had also perused the record carefully. If that were so, the Tribunal could not have missed the fact that the nil effect shown by the Deputy Commissioner of Income-tax, Central Circle-I, Hyderabad, in his assessment order dated 31.03.2004 was due to the fact that the amount received by the assessee from M/s. Grant Prideco to the tune of Rs.28,87,84,782/- was adjusted against the business losses of the years 1990-91, 1991-92, 1992-93 and 1993-94, apart from the assessment year 1996-97, as per the consequential order dated 28.02.2001. In exercise of power under Section 147 of the Act of 1961, the assessing officer reopened the assessment and determined the income of the assessee as Rs.28.08 crores before set off of carry forward losses. Aggrieved thereby, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) IV, Hyderabad. This appeal was allowed by the Commissioner vide order dated 12.01.2005. Challenging the same, the Revenue preferred the appeal before the Income Tax Appellate Tribunal. This being the factual situation, it cannot be stated that the tax effect in the appeal was lesser than the monetary limit fixed by the CBDT. According to the Revenue, the notional tax effect would be to the tune of over Rs.1.00 crore. Sri P.Vinod, learned counsel representing Sri K.Vasanth Kumar, learned counsel for the respondent/assessee, does not dispute the fact that the Tribunal’s conclusion that the tax effect in the appeal is below the monetary limit is incorrect. He would however submit that the departmental representative for the Revenue conceded to this effect before the Tribunal and assert that it is not open to the Revenue to file an appeal once its own representative conceded so before the Tribunal. We are unable to accede to this submission as the interest of the Revenue cannot be sacrificed owing to a wrong representation being made by the departmental representative. The appeal is accordingly allowed and the common order dated 27.02.2008 passed by the Income Tax Appellate Tribunal, Hyderabad Bench ‘B’, Hyderabad, in so far as it relates to I.T.A.No.466/Hyd/2005, is set aside and the matter is remitted to the Tribunal for consideration afresh on merits and in accordance with law. No order as to costs. ____________________ JUSTI CE SANJAY KUMAR _____________________________ JUSTI CE GUDI SEVA SHYAM PRASAD Date:12.06.2017 GJ