M/s. Indraprasttha Suppliers, New Delhi V. ITO, New Delhi

CO 185/DEL/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7424 (ITAT-DELHI)
• Duration Of Justice: 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RIS GILL
• Assessee Lawyers: AVDESH BANSAL
• Keywords: Tax effect

Judgement Text

ITA NO. 1543/DEL/2012 & CO. NO. 185/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER I.T.A. NO. 1543/DEL/2012 A.Y. : 2008-09 ITO, WARD 28(1), ROOM NO. 213, 2 ND FLOOR, DRUM SHAPE BUILDING, NEW DELHI VS. M/S INDRAPRASTHA SUPPLIERS, 509, KHARI BAOLI, DELHI (PAN/GIR NO. : AAAFI-1195E) AND AND AND AND CROSS OBJECTION NO. 185/DEL/2012 (IN ITA NO. 1543/DEL/2012) A.Y.. : 2008-09 M/S INDRAPRASTHA SUPPLIERS, 509, KHARI BAOLI, DELHI VS. ITO, WARD 28(1), NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SH. AVDESH BANSAL, CA DEPARTMENT BY : SH. RIS GILL, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. C OMMISSIONER OF INCOME TAX (APPEALS)-XXV, NEW DELHI DATED 19.1.2012 AND PERTAIN TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED IN THE REVENUES APPEAL RE AD AS UNDER:- ITA NO. 1543/DEL/2012 & CO. NO. 185/DEL/2012 2 (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXV, NEW DELHI ERRED IN DELETING THE ADDITION OF ` 5,62,281/- MADE BY THE AO ON ACCOUNT OF TREATING THE SALE OF LAND AS SALE OF BUSINESS ASSET AND DIRECTING THE AO TO ASSESS IT AS LONG TERM CAPITAL GAIN. (II) THE APPELLANT CRAVES LEAVE FOR RESERVING THE R IGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 3. THE GROUNDS RAISED IN THE ASSESSEES CROSS OBJE CTION READ AS UNDER:- (I) THAT THE LD. AO ERRED IN LAW AND ON FACTS IN PR EFERRING THE PRESENT APPEAL IN VIOLATION OF INSTRUCTION NO. 3 D ATED 9 TH FEB., 2011 ISSUED BY CBDT VIDE F.NO. 279/MISC. 142/200 7- ITJ. IT IS PRAYED THAT THE DEPARTMENTAL APPEAL MAY BE HELD AS NON-MAINTAINABLE OR ANY OTHER RELIEF WHICH MAY HE DEEMED ON FIT BE PROVIDED. 4. AT THE THRESHOLD, WE NOTE THAT TAX EFFECT IN THIS CASE IS LESS THAN ` 3 LACS FIXED BY THE CBDT FOR FILING APPEAL BEFORE THE TRIBUNAL. AS PER INSTRUCTION NO. 3/2011 (F.NO. 279/MISC./142/2007-ITJ) DATED 09.02.2011 ISSUED BY THE CBDT, THE TAX EFFECT FOR FILING APPEAL BEFORE THE APPELLATE TRIBUNAL SHOULD BE MORE THAN ` 3 LAKHS. THE AFORESAID INSTRUCTIONS HAVE BEEN HELD TO BE APPLICABLE TO ALL PENDING APPEALS BY THE HONBLE DELHI HIGH COURT IN THE DECISIONS IN THE CASES:- ITA NO. 1543/DEL/2012 & CO. NO. 185/DEL/2012 3 (I) C.I.T. VS. M/S P.S. JAIN & CO. IN ITA NO. 179/199 1, ORDER DATED 2 ND AUGUST, 2010. (II) C.I.T. VS. DELHI RACE CLUB IN ITA NO. 128/2008, ORDER DATED 3 RD MARCH, 2011. 4.1 IN THE PRESENT CASE, ADMITTEDLY THE TAX IS BELOW ` 3 LAKHS. HENCE, THE APPEAL IS IN CONTRAVENTION OF THE AFORESAID CBDT CIRCULAR/INSTRUCTION. HENCE, THE SAME IS LIABLE TO BE DISMISSED. ACCORDINGLY, THIS APPEAL BY THE REVENUE STANDS DISMISSED FOR TAX EFFEC T. 5. IN THE CROSS OBJECTION ASSESSEE HAD PLEADED THAT THE A PPEAL SHOULD BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT. SINCE WE HAVE ALREADY DISMISSED THE REVENUES APPEAL ON ACCOUNT OF TAX EFFECT. HENCE, THE CROSS OBJECTION STANDS ALLOWED. 6. IN THE RESULT, THE REVENUES APPEAL STANDS DISMISSED AN D ASSESSEES CROSS OBJECTION STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/6/2012. SD/- SD/- [ [[ [C.M. GARG C.M. GARG C.M. GARG C.M. GARG] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 06/6/2012 SRB SRB SRB SRBHATNAGAR HATNAGAR HATNAGAR HATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5.DR, I TAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES