Sh. Ajay Kumar Mittal, Muzaffarnagar V. ITO, Muzaffarnagar

CO 128/DEL/2009

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 5938 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-04-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 10-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Tax effect
• Section: 147; 68

Judgement Text

ITA NO. 3632/DEL/2008 AND CO NO. 1287/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER I.T.A. NO. 3632/DEL/2008 A.Y. : 2001-02 INCOME TAX OFFICER, WARD 2(1), AAYAJAR BHAVAN, MEERUT ROAD, MUZAFFARNAGAR VS. SH. AJAY KUMAR MITTAL, 33, MANDI WAIRGANJ, MUZAFFARNAGAR (PAN/GIR NO. : AAVPM0640D) AND C.O. NO. 128/DEL/2009 (IN ITA NO. 3632 /DEL/2008) A.Y. 2001-02 SH. AJAY KUMAR MITTAL, VS. INCOME TAX OFFICER, C/O RRA TAXINDIA, WARD 2(1), D-28, SOUTH EXTENSION, MUZAFFARNAGAR PART-I, NEW DELHI 110 049 (PAN/GIR NO. : AAVPM0640D) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. ASHWANI TANEJA, CA DEPARTMENT BY : SH. A.K. MONGA, SR. D.R. ORDER ORDER ORDER ORDER PER PER PER PER RAJPAL YADAV : J RAJPAL YADAV : J RAJPAL YADAV : J RAJPAL YADAV : JM MM M THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 24.9.2008 PASSED FOR ASSESSMENT YEAR 2001-02. ON RECEIPT OF NOTICE IN TH E REVENUES APPEAL, ASSESSEE HAS FILED CROSS OBJECTION BEARING 128/DEL/2009. ITA NO. 3632/DEL/2008 AND CO NO. 1287/DEL/2009 2 2. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE NOT IN CONSONANCE WITH RULE 8 OF ITAT RULES, THEY ARE DESC RIPTIVE AND ARGUMENTATIVE IN NATURE. IN BRIEF THE GRIEVANCE O F REVENUE IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN D ELETING THE ADDITION OF ` 8,62,866/- WHICH WAS ADDED BY THE ASS ESSING OFFICER WITH THE AID OF SECTION 68 OF THE INCOME TAX ACT, 1961. 3. IN THE CROSS OBJECTION, THE ASSESSEE HAS PLEADED THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NO T QUASHING THE ASSESSMENT ORDER, BECAUSE THE ASSESSMENT HAS BEEN RE OPENED IN VIOLATION TO CONDITIONS PRESCRIBED U/S 147 TO 153 O F THE ACT. 4. WITH THE ASSISTANCE OF THE LD. REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORDS CAREFULLY. LD. COUNSEL OF THE A SSESSEE AT THE OUTSET, POINTED OUT THAT TAX EFFECT ON THE ADDITION S DELETED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS ` 2,62,000/- . ON THE STRENGTH OF LATEST INSTRUCTION NO. 3/2011 ISSUED BY THE CBDT , HE PLEADED THAT THE PRESENT REVENUES APPEAL IS NOT MAINTAINABLE. HE FURTHER SUBMITTED THAT IN CASE APPEAL OF THE REVENUE IS DI SMISSED FOR WANT OF LOW TAX EFFECT INVOLVED, IN VIEW OF THE CBDTS INST RUCTIONS, THEN ASSESSEE DOES NOT PRESS HIS CROSS OBJECTION. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE WAS UNABLE TO CONTROVERT THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE. 6. WE HAVE GONE THROUGH THE RIVAL CONTENTIONS AND RELEVANT RECORDS. WE FIND THAT THE CBDT HAS ISSUED REVISED I NSTRUCTIONS BEARING NO. 3/2011. THESE INSTRUCTIONS HAVE BEEN ISSUED ON 09.2.2011. IN THESE INSTRUCTIONS IT HAS BEEN PROVIDED THAT THE RE VENUE SHALL NOT FILE ITA NO. 3632/DEL/2008 AND CO NO. 1287/DEL/2009 3 APPEAL AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), IF THE TAX EFFECT DOES NOT EXCEED THE MON ETARY LIMIT OF ` 3 LAKHS. AT SERIAL NO. 8, THE BOARD HAS PROVIDED CER TAIN EXCEPTIONS. THE PRESENT APPEAL DOES NOT FALL UNDER THESE EXCEPTION. THE HONBLE DELHI HIGH COURT IN THE CASE OF C.I.T. V DELHI RAC E CLUB LTD. DECIDED ON 11.3.2011 HAS OBSERVED THAT THESE INSTRUCTIONS WILL BE APPLICABLE ON PENDING APPEALS. HONBLE DELHI HIGH COURT IN THIS REGARD MADE A REFERENCE TO THE CASE OF C.I.T. VS P.S. JAIN WHERE IN THE HONBLE HIGH COURT HAS FOLLOWED THE DECISION OF THE HONBLE MUMBA I HIGH COURT IN THE CASE OF PITHWA ENGINEERING 276 ITR 519 MUMBAI AS WELL AS THE DECISION OF THE HONBLE M.P. HIGH COURT IN THE CASE OF ASHOK PATEL REPORTED IN 317 ITR 386. 7. IN VIEW OF THE HONBLE DELHI HIGH COURT, THESE I NSTRUCTIONS ARE APPLICABLE ON THE PENDING APPEALS. THE TAX EFFE CT IN THE PRESENT APPEAL IS LES THAN ` 3 LAKHS. HENCE, THE APPEAL FI LED BY THE REVENUE IS IT IS NOT MAINTAINABLE AND STAND DISMISSED AS SUCH. 8. SINCE WE HAVE DISMISSED THE APPEAL FILED BY THE R EVENUE, THE ASSESSEE DID NOT PRESS THE CROSS OBJECTION, HENCE, THE SAME STANDS DISMISSED, AS NOT PRESSED. ITA NO. 3632/DEL/2008 AND CO NO. 1287/DEL/2009 4 9. IN THE RESULT, BOTH THE APPEAL AND CROSS OBJECT ION FILED BY THE REVENUE AND ASSESSEE RESPECTIVELY STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/4/2011 UPO N CONCLUSION OF HEARING. SD/- SD/- [ [[ [G.E. VEERABHADRAPPA G.E. VEERABHADRAPPA G.E. VEERABHADRAPPA G.E. VEERABHADRAPPA ) )) ) (RAJPAL YADAV) (RAJPAL YADAV) (RAJPAL YADAV) (RAJPAL YADAV) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT JUDICIAL MEMB JUDICIAL MEMB JUDICIAL MEMB JUDICIAL MEMBER ERER ER DATE 11/04/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES