Shri Ashish Singhania, New Delhi V. ACIT, New Delhi

CO 22/DEL/2014

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0961 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 16-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A MISHRA
• Assessee Lawyers: AMIT GOEL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. GEORGE GEORGE K. , JM ITA NO. 4771/DEL/2013 : ASSTT. YEAR : 2005 - 06 ASSTT . COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 03 , NEW DELHI VS SHRI ASHISH SIN GHANIA, 104, RAJDHANI ENCLAVE, NEW DELHI - 110092 (APPELLANT) (RESPONDENT) CO NO. 22/DEL/2014 : ASSTT. YEAR : 2005 - 06 SHRI ASHISH SINGHANIA, 104, RAJDHANI ENCLAVE, NEW DELHI - 110092 VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 03, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AKUPS5014J ITA NO. 4772/DEL/2013 : ASSTT. YEAR : 2003 - 04 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 03, NEW DELHI VS SMT. ASHA SINGHANIA, 104, RAJDHANI ENCLAVE, NEW DELHI - 110092 (APPELLANT) (RESPONDENT) CO NO. 23 /DEL/2014 : ASSTT. YEAR : 200 3 - 0 4 SMT. ASHA SINGHANIA, 104, RAJDHANI ENCLAVE, NEW DELHI - 110092 VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 03, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AGUPS4465H ASSESSEE BY : SH. AMIT GOEL , CA REVENUE BY : SMT. A. MISHRA, CIT DR DATE OF HEARING : 11.06 .2015 DATE O F PRONOUNCEMENT : 11.06 .2015 ITA NOS.4771 & 4772 /DE L/2013 CO NOS. 22 & 23/DEL/2014 ASHISH & ASHA SINGHANIA 2 ORDER PER BENCH: THESE APPEAL S BY THE DEPARTMENT AND THE CROSS OBJECTION S OF THE ASSESSEE ARE DIRECTED AGAINS T THE SEPARATE ORDER S EACH DATED 10.05.2013 OF THE L D. CIT(A) - IV , NEW DELHI. 2 . DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET ST ATED THAT THE TAX EFFECT IN THESE APPEAL S ARE LESS THAN RS.4 ,00,000/ - , THEREFORE, THE D EPART MENT OUGHT NOT TO HAVE FILED THE S E APPEAL S IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONTAINED IN SECTION 268A OF THE INCOME TAX ACT, 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). 3 . ON THE OTHER HAND, THE LD. D.R., ALTHOUGH SUPP ORTED THE ORDER S OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THIS FACT THAT TAX EFFECT IN THESE APPEAL S ARE LESS THAN RS.4 ,00,000/ - . 4 . AFTER CONSIDERING THE SUBMISSIONS OF THE LD. D.R. AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HA S BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: ITA NOS.4771 & 4772 /DE L/2013 CO NOS. 22 & 23/DEL/2014 ASHISH & ASHA SINGHANIA 3 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME - TAX AUTHORITIES , FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIO NS ISSUED UNDER SUB - SECTION (1), AN INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR RE FERENCE ON THE SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR ( B ) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON TH E DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRC UMSTANCES UNDER WHICH SUCH APPEAL ITA NOS.4771 & 4772 /DE L/2013 CO NOS. 22 & 23/DEL/2014 ASHISH & ASHA SINGHANIA 4 OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFER ENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ] 5 . IT IS NOT IN DISPUTE THAT THE BOARD S INSTRUCTION OR DIRECTIONS ISSUED TO THE INCOME - TAX AUTHORITIES ARE BINDI NG ON THOSE AUTHORITIES, THEREFORE , THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE SAID PROVISIONS MENTIONED IN SECTION 268A OF THE ACT SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE A PPEAL. 6 . IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 4,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 7 . KEEPING IN VIEW THE CBDT INSTRUCTION NO.5 OF 20 14 DATED 10.07.2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. ITA NOS.4771 & 4772 /DE L/2013 CO NOS. 22 & 23/DEL/2014 ASHISH & ASHA SINGHANIA 5 WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS O F HON'BLE PUNJAB & HARYANA HIGH COURT: - 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 3. CIT V VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H)(FB) 8 . SIMILARLY THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER DATED 03.03.2011 BY FOLLOWING THE EARLIER ORDER DATED 02.08.2010 IN ITA NO.179/1991 IN THE CASE OF CIT DELHI - III V. M/S. P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDI NG CASES. 9 . FROM THE RATIO LAID DOWN BY THE HON BLE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO.5/14 DATED 10.07.2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4.00 LAKHS. ITA NOS.4771 & 4772 /DE L/2013 CO NOS. 22 & 23/DEL/2014 ASHISH & ASHA SINGHANIA 6 10 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL S FILED BY THE REVENUE. 11 . SINCE WE HAVE DISMISSED THE APPEALS OF THE REVENUE, T HE CROSS OBJECTIONS BY THE ASSESSEE ARE TREATED AS INFRUCTUOUS PARTICULARLY WHEN NO RELIEF HAS BEEN SOUGHT AND THOSE WERE FILED IN SUPPORT OF THE ORDER OF THE CIT(A). 12 . IN THE RESULT, APPEAL S OF THE REVENUE AND CROSS OBJECTION S OF THE ASSESSEE ARE DISMISSED. ( ORDER PRON OUNCED IN THE COURT ON 11/06 /2015) . SD/ - SD/ - (GEORGE GEORGE K. ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 /06 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR