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TMI Blog2011 (6) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... val submissions, as claimed, the tax effect is ₹ 1,55,600/- which is within the prescribed limit, therefore, as per the instructions issued by CBDT, the department is not permitted to file the appeal. Our view is supported by the decision of the Tribunal in the case of Rajan Cloth Stores (ITA No. 365/Ind/2010) order dated 31.5.2011. The relevant portion of the same is reproduced hereunder :- This appeal is by the revenue against the order of the learned CIT(A)-I, Indore, dated 4.3.2010 on the ground that the ld. CIT(A) erred in overlooking the provision of sec. 275(1A) of I.T. Act and deleting penalty u/s 271(1)(c) for ₹ 2,32,780/-. 2. During hearing of this appeal, we have heard Shri Pradeep Kuamr Mitra, ld. Sr. DR for the Revenue and Shri S.S. Deshpande, ld. Counsel for the assessee. At the outset, the ld. Counsel for the assessee submitted that the tax effect in the present appeal is below prescribed monetary limit, therefore, straight way, the appeal of the revenue may be dismissed. The ld. Sr. DR fairly admitted that the tax effect is below prescribed monetary limit. 3. We have considered the rival submissions of ld. representatives of both sides and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect is below the prescribed monetary limit, therefore, the department is not permitted to file this appeal and the same deserves to be dismissed on this short ground itself. However, the learned Sr. DR fairly agreed that the tax effect is below prescribed monetary limit. 3. We have considered the rival submissions of ld. representatives of both sides and perused the material available on record. In view of the above assertion of the learned respective counsels, we are of the considered opinion that this appeal of the revenue deserves to be dismissed. Our view finds support from the decision dated 2nd December, 2009 of the Tribunal in the case of Himanshu Floor Mills (ITA No. 507/Ind/2009). The relevant portion of the same is reproduced hereunder :- This appeal is by the revenue challenging the order of the CIT(A) dated 26.8.2009. During hearing of this appeal, I have heard Smt. Aparna Karan, learned Senior DR, and no-body was present for the assessee. Registered notice of hearing was sent to the assessee on 11.11.2009. The assessee neither presented itself nor moved any application for adjournment, therefore, I have no option but to proceed ex-parte qua the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aparna Karan, ld. Sr. DR and Shri H.P. Verma along with Shri Ashish Goyal, Ld. Counsel for assessee. At the outset, it was pointed out that there is typographical error in mentioning the figure of ₹ 6,37,206/- in the ground of appeal as the correct figure is ₹ 3,94,732/-. The assertion of the assessee was consented to be correct by the ld. Sr. DR. Further, it was pointed out that the tax effect is also below monetary limit, therefore, the appeal of the revenue may be dismissed. The ld. Sr. DR fairly agreed to the submission of the assessee to the extent that the tax effect is below prescribed monetary limit for filing the appeal before the Tribunal. S.No. Authority Monetary Limit (In Rs.) 1 ITAT 2,00,000/- 2 Appeal under section 260A before High Court 4,00,000/- 3 Supreme Court 10,00,000/- The Board further clarified the tax effect, which means the difference between the tax on the total income assessed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought forward losses of earlier years which were not set off after verification of records of earlier years. Even otherwise, it is a case of assessed loss which has not been set off. Consequently, we are in agreement that in view of the provisions of section 72 it should be allowed. Consequently, there is no grievance to the revenue since it has been remanded back to the file of the Assessing Officer to do the needful after verification of records of earlier years. My view finds support from the ratio laid down in CIT v. J.H. Gotla; 156 ITR 323 (SC); Tara Devi Behl v. CIT; 218 ITR 541 (P H). The Hon ble Apex Court in the case of CIT v. Mahalaxmi Sugar Mills Co. Ltd.; 160 ITR 920 even went to the extent that ITO must allow set off even if it is not claimed by the assessee because a duty is cast upon the ITO to apply the relevant provisions of the Indian Incometax Act for the purpose of determining the true figure of assessee s taxable income and the consequential tax liability. Merely because the assessee fails to claim the benefit of set off cannot relieve the ITO of his duty to apply section 72 in an appropriate case. In view of these facts and judicial pronouncements, I have foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cross objection no. 8/Ind/2010 is concerned, the first ground pertains to approval of the action u/s 148 of the Act was not pressed by the ld. Counsel for the assessee, therefore, this ground is dismissed as not pressed. 5. The next ground in the cross objection is that ld. first appellate authority erred in maintaining the disallowance of interest u/s 40A(2)(b) of the Act. The crux of arguments on behalf of the assessee is that the interest was paid at the rate of 24%. This factual matrix was not controverted by the revenue. 5. We have considered the rival submissions and perused the material on record. Brief facts are that the disallowance of ₹ 1,25,000/- was made out of ₹ 2,24,480/- by the Assessing Officer under section 40A(2)(b) by claiming that the interest at excessive rate was paid. Our attention was invited to the interest paid to various parties and the confirmation by the parties at pages 113 to 120 of the paper book. All the lenders are assessed in the same Ward and the interest was paid as per the copy of accounts, consequently, on the facts available on record, no disallowance should have been made because normally while getting the amount from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ival submissions we find that this issue has been dealt with by the learned Commissioner of Income Tax (Appeals) at page 5 (para 4.5) and page 7 (para 5.4) of the impugned order. We find that the addition of the impugned amount was made without confronting the assessee. The assessee used to make purchases from the wholesalers and credited to their accounts on receipt of the goods. The suppliers were debited to the assessee s account the same day but the assessee did not credit their account for want of receipt of goods and many times the suppliers issued credit notes against the supplies made before the end of the financial year. We have perused the factual finding contained in para 4.5 of the impugned order and find no infirmity in the same, therefore, this ground of the revenue is dismissed. The appeal of the revenue is, therefore, dismissed. 8. In cross objection no. 9/Ind/2010, the assessee has raised the approval of action u/s 148 of the Act. This ground was not pressed by the ld. Counsel for the assessee and dismissed as such. Finally, the appeals of revenue are dismissed. C.O. No.8/Ind/2010 is partly allowed and C.O. No.9/Ind/2010 is dismissed as not pressed. Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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