Sh. Mahaveer Giria Prop. M/s. Kundan Mal Pukhraj & Co., JODHPUR V. ITO, JODHPUR

CO 3/JODH/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8946 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 06-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: N R MERTIA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.67/JODH/2012 (A.Y. 2006-07) THE ITO, VS. SHRI MAHAVEER GIRIA, WARD-1(3), PROP. M/S. KUNDAN MAL JODHPUR. PUKHRAJ & CO., KANDOI BAZAR, JODHPUR. (APPELLANT) (RESPONDENT) PAN NO. AAQPG3800N C.O. NO.03/JODH/2012 (ARISING OUT OF ITA NO. 67/JODH/2012) (A.Y. 2006-07) SHRI MAHAVEER GIRIA, VS. THE ITO, WARD-1(3), PROP. M/S. KUNDAN MAL JODHPUR. PUKHRAJ & CO., KANDOI BAZAR, JODHPUR. (APPELLANT) (RESPONDENT) PAN NO. AAQPG3800N ASSESSEE BY : SHRI N.R.MERTIA DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 04/09/2013. DATE OF PRONOUNCEMENT : /09/2013. O R D E R PER N.K.SAINI, A.M 2 THE APPEAL BY THE DEPARTMENT AND CROSS OBJECTION B Y THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 15/12/2011 OF CIT(A) JODHPUR. APPEAL OF THE DEPARTMENT AND C.O. OF THE ASSESSEE W ERE EARLIER DECIDED ON 29/10/2012, HOWEVER, SINCE THE APPEAL OF THE DEP ARTMENT WAS DECIDED EXPARTE QUA THE ASSESSEE AND A MISC. APPLICATION WAS MOVED , THEREFORE, AT THE INSTANCE OF THE ASSESSEE IN M.A.N O. 42/JU/2012, THE ORDER WAS RECALLED BY KEEPING IN VIEW THE PROVISION S CONTAINED IN RULE 25 OF THE I.T. (A.T.) RULES, 1963. 2 . FIRST WE WILL DEAL WITH THE APPEAL OF THE DEPARTM ENT. THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER:- THE LD. CIT(A) ERRED IN ALLOWING DEDUCTION OF RS. 30,000/- AS PER FIRST PROVISO TO SECTION 24(B) OF THE ACT, SINCE TH AT PROVISO IS ALSO APPLICABLE ONLY IN CASE WHERE CONSTRUCTION IS COMPL ETED IN THE RELEVANT PREVIOUS YEAR. 3 . FROM THE ABOVE GROUND, IT IS CLEAR THAT THE ONLY GRIEVANCE OF THE DEPARTMENT RELATES TO DEDUCTION OF RS.30,000/- AS P ER FIRST PROVISO OF SECTION 24(B) OF THE I.T. ACT, 1961 (HEREINAFTER RE FERRED TO AS ACT, FOR SHORT). 4. DURING THE COURSE OF HEARING, LD. D.R., ALTHOUGH S UPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT C ONTROVERT THIS 3 CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT TAX EFFECT IN THIS APPEAL IS LESS THAN RS.3,00,000/-. 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PART IES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIV E EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 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 DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME- TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATI ON FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESS EE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE 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 F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY 4 PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTION S ISSUED UNDER SUB-SECTION (1), IT SHALL NOT BE LAWFU L FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSU E BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENC E IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDER S, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL 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 REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY.] 6. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME-TAX AUTHORITI ES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPART MENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE M ENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CA SE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 7. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.3 OF 2011 DATED 09.02.2011, BY WHICH THE CBDT HAS REVISE D THE 5 MONETARY LIMIT TO RS. 3,00,000/- FOR FILING THE APP EAL BEFORE THE TRIBUNAL. 8. KEEPING IN VIEW THE CBDT INSTRUCTION NO.3 OF 2011 DATED 09.02.2011 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. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECI SIONS OF 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) 9. SIMILARLY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER DATE D 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 PENDING CASES. 10 . FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HIG H COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIR CULARS BY CBDT 6 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.3/11 DATED 09.02.2011 ISSUED BY THE CBDT ARE APPLICABLE FOR TH E PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY T AX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 3.00 L AKHS. 11. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 12 . ACCORDINGLY, APPEAL OF THE DEPARTMENT IS DISMISSE D. 13. AS REGARDS TO THE CROSS OBJECTION OF THE ASSESSEE I S CONCERNED, LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS THE SAME AND GAVE IN WRITING AS UNDER:- C.O. NOT PRESSED, SD/- 04/09/2013 LD. D.R. DID NOT OBJECT, IF THE C.O. IS DISMISSED AS NOT PRESSED. 14 . ACCORDINGLY, THE CO OF THE ASSESSEE IS DISMISSED AS NOT PRESSED. 7 15 . IN THE RESULT, APPEAL OF THE DEPARTMENT AS WELL A S CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE COURT ON SEPTEMBER, 2 013) (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : SEPTEMBER, 2013. VR/- COPY TO: THE APPELLANT THE RESPONDENT THE LD.CIT THE CIT(A) THE D.R GUARD FILE. ASSISTANT REGISTRAR, ITAT, JODHPUR.