Riazuddin Tomer, Ghaziabad V. ACIT, Ghaziabad

CO 145/DEL/2014

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2794 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 05-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 516/DEL/2012 ASSESSMENT YEAR: 2008-09 ACIT, CIRCLE-2, VS. RIAZUDDIN TOMER, GHAZIABAD B-17, B.S. ROAD, INDL. AREA SITE-1, GHAZIABAD (PAN:ACKPT8811A) (APPELLANT) (RESPONDENT) AND C.O. NO. 145/DEL/2014 (IN ITA NO. 516/DEL/2012) ASSESSMENT YEAR: 2008-09 RIAZUDDIN TOMER, VS. ACIT, CIRCLE 2, B-17, B.S. ROAD, GHAZIABAD INDL. AREA SITE-1, GHAZIABAD (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. F.R. MEENA, SR. DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU, J.M. THE APPEAL HAS BEEN FILED BY THE DEPARTMENT AND TH E CROSS OBJECTION FILED BY THE ASSESSEE AGAINST THE ORDER OF TH E LD. CIT(A)- GHAZIABAD DATED 8.11.2011 RELATING TO ASSESSMENT YEAR 2008-09. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN I TS APPEAL NO. 516/DEL/2012:- 2 1. THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 15,69,547/- ON THE EVIDEN CES WHICH WAS FILED AT THE APPELLATE STAGE AND WAS NOT EXAMINED BY THE AO, AS THE ASSESSEE DID NOT APPEAR BEFORE AO WHEN HE WAS ASKED TO APPEAR. 2. THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS. 50,000/- OF ADVANCE FR OM CUSTOMER WITHOUT GIVING ANY OBSERVATION IN THE ORDER. 3. THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N HOLDING THAT CONFIRMATION GIVEN AND DIFFERENCE IN TH E ENTRIES AND BALANCE SATISFACTORILY EXPLAINED IN THE CASE OF MM INDUSTRIES WHERE DIFFERENCE OF RS. 3,31,405/- WAS ADDED IN THE INCOME OF THE ASSESSEE AND AS THE PAYME NT OF THE SAME WAS NOT EVEN CONFIRMED BY THE DEBTOR PARTY. 4. THEREFORE, THE ORDER OF THE LD. CIT(A) BE CANCELL ED AND THE ORDER OF THE AO MAY BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO MODIFY / AMEND OR ADD ANY ONE OR MORE GROUNDS OF APPEAL. 3. THE ASSESSEE HAS NOT RAISED ANY GROUND BUT HAS ONLY OPPOSING IN DETAIL THE EACH GROUND RAISED IN THE REVE NUES APPEAL AND SUPPORTS THE ORDER OF THE LD. CIT(A) ON THE ISSU ES INVOLVED. 3 THEREFORE, THE GROUNDS MENTIONED AT ANNEXURE-A IN THE CROSS OBJECTION ARE NOT REPEATED HERE FOR THE SAKE OF BREV ITY. 4. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WA S SENT BY THE REGISTERED AD POST, WHICH WAS RETURNED BACK WITH T HE REMARKS LEFT WITHOUT ADDRESS. NO FRESH ADDRESS HAS BEEN FURNISH ED BY THE ASSESSEE BEFORE THE TRIBUNAL. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRES ENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT APPEAL AND CROSS OBJECTION EXPARTE QUA ASSESSEE, AF TER HEARING THE LD. DR AND PERUSING THE RECORDS. 5. LD. DR RELIED UPON THE ORDER OF THE AUTHORITIES BELO W. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. AFTER PERUSING THE GROUNDS MENTIONED IN THE REVENUES APPEAL, WE FIND THAT THE TAX EFFECT IN THE REVENUES AP PEAL IS LESS THAN RS.10,00,000/-, THEREFORE, THE DEPARTMENTS APPEAL IS NOT MAINTAINABLE, IN VIEW OF THE CIRCULAR NO. 21/2015 DA TED 10 TH DECEMBER, 2015 ISSUED VIDE F.NO. 279/MISC. 142/2007 -ITJ (PT.) BY THE CBDT. FOR THE SAKE OF CONVENIENCE, THE RELEVANT P ARA NOS. 3 & 10 OF THE AFORESAID CBDTS CIRCULAR ARE REPRODUCED A S UNDER:- 4 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY L IMITS GIVEN HEREUNDER: S NO APPEALS IN INCOME -TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/ - 2 BEFORE HIGH COURT 20,00,000/ - 3 BEFORE SUPREME COURT 25,00,000/ - IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETA RY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH C OURTS/ 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. 7. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THO SE 5 AUTHORITIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHD RAWN/ NOT PRESSED THE PRESENT APPEAL, IN VIEW OF THE AFORESAI D INSTRUCTIONS SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THA N THE AMOUNT OF RS. 10 LACS, PRESCRIBED IN THE ABOVE SAID CBDTS I NSTRUCTIONS. 8. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SH OULD HAVE WITHDRAWN/ NOT PRESSED THE INSTANT APPEAL BEFORE THE TRI BUNAL. WE ARE ALSO OF THE VIEW THAT THE SAID INSTRUCTIONS ARE APPL ICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH I N TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. 9. WITH REGARD TO CROSS OBJECTION FILED BY THE ASSE SSEE IS CONCERNED, WE FIND THAT AT THE TIME OF FILING THE CROS S OBJECTION THERE IS A DELAY OF 774 DAYS FOR WHICH THE ASSESSE HA S FILED THE APPLICATION FOR CONDONATION OF DELAY. AFTER PERUSING THE SAID APPLICATION, WE ARE OF THE VIEW THAT THE REASONS MENT IONED IN THE CROSS OBJECTION BY THE ASSESSEE ARE NOT SUFFICIENT A ND REASONABLE, HENCE, THE CROSS OBJECTION FILED BY THE ASSESSE IS DI SMISSED AS SUCH. EVEN OTHERWISE, THE CROSS OBJECTION IS ONLY S UPPORTIVE OF THE LD. CIT(A)S ORDER. THEREFORE, ON THIS GROUND ALSO TH E SAME IS INFRUCTUOUS/DISMISSED, BECAUSE WE HAVE ALREADY DISMI SSED THE REVENUES APPEAL ON ACCOUNT OF LOW TAX EFFECT, AS AFOR ESAID. 6 10. IN THE RESULT, APPEAL FILED BY THE REVENUE AS W ELL AS CROSS OBJECTION FILED BY THE ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/02/2017. SD/- SD/- (O.P. KANT) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 15/02/2017 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR