Sh. Amit Jain, Delhi V. DCIT, Meerut

CO 303/DEL/2014

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2115 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAUBHAGYA AGARWAL
• Assessee Lawyers: K K JAISWAL
• Keywords: Search and seizure; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACOUNTANT MEMBER ITA NO. 1016/DEL/2014 ASSESSMENT YEAR: 2009-10 DCIT, VS. SH. AMIT JAIN, CENTRAL CIRCLE, C-215, VIVEK VIHAR, MEERUT DELHI (PAN: AAEPJ3625J) (APPELLANT) (RESPONDENT) AND CROSS OBJECTION NO. 303/DEL/2014 (IN ITA NO. 1016/DEL/2014) ASSESSMENT YEAR: 2009-10 SH. AMIT JAIN, VS. DCIT, CENTRAL CIRCLE, C-215, VIVEK VIHAR, MEERUT DELHI (PAN: AAEPJ3625J) APPELLANT BY : SH. K.K. JAISWAL, DR RESPONDENT BY : SH. SAUBHAGYA AGARWAL, ADV . DATE OF HEARING : 13-1-2016 DATE OF ORDER : 03-02-2016 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT AND CROSS OBJECTION WAS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 28.11 .2013 OF LD. CIT(A)-MEERUT PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED IN THE REVENUES APPEAL READ AS UNDER:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW IN NOT APP RECIATING THE FACT THAT THE PENALTY OF RS. 3,50,000/- U/S. 271(1)(C) OF THE I.T. ACT WAS LEVIED FOR CONCEALMENT OF PARTICULARS OF INCOME AS THE ADDITION OF RS. 10 LACS MADE ON ACCOUNT OF UNEXPLAINED CASH, OU T OF RS. ITA NO. 1016/DEL/2014 & CO NO. 303/DEL/2014 2 18,44,620/- FOUND DURING THE SEARCH AND SEIZURE OPE RATION AND ADDED TO THE INCOME OF THE ASSESSEE U/S. 69A OF THE ACT. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN ALLOWING THE APPEAL REGARDING IMPOSITION OF PENALTY U/S. 271(1)( C) OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS HIMSELF ACCEPTED THE ORDER OF THE AO PASSED U/S. 143(3) OF THE ACT AND NO FURTHER APPEAL HAD BEEN FILED BY HIM. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW IN NOT CONS IDERING THE PROVISIONS TO EXPLANATION 271(1)(C) AS EXPLAINED BY THE HONBLE SC IN THE CASE OF MAK DATA (P) LTD. VS. CIT IN CIVIL A PPEAL NO. 9772 OF 2013 IN (2013) 263 CTR (SC) 1 4. THAT THE LD. CIT(A)HAS ERRED IN LAW IN NOT APPRE CIATING THE PROVISIONS OF EXPLANATION TO SECTION 271(1)(C) OF T HE ACT. 5. THAT THE ORDER OF THE LD. CIT(A) BEING ERRONEOUS IN LAW AND ON FACTS WHICH NEEDS TO BE VACATED AND THE ORDER OF TH E AO BE RESTORED. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUND OF THE APPEAL AS STATED ABOVE AS AND WHE N NEED FOR DOING SO MAY ARISE. 3. FROM THE ABOVE, WE FIND THAT THE TAX EFFECT IN THE REVENUES APPEAL IS LESS THAN RS.10,00,000/-, THEREFORE, THE DEPARTMENTS AP PEAL IS NOT MAINTAINABLE, IN VIEW OF THE CIRCULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 ISSUED VIDE F.NO. 279/MISC. 142/2007-ITJ (PT.) BY THE CBDT. FO R THE SAKE OF CONVENIENCE, THE RELEVANT PARA NOS. 3 & 10 OF THE AFORESAID CBDT S CIRCULAR ARE REPRODUCED AS UNDER:- 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/- ITA NO. 1016/DEL/2014 & CO NO. 303/DEL/2014 3 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 COURTS/ 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 INSTRUCTI ONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEA L WAS FILED. 4. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORI TIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHDRAWN/ NOT PRESSED THE P RESENT APPEAL, IN VIEW OF THE AFORESAID INSTRUCTIONS SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN THE AMOUNT OF RS. 10 LACS, PRESCRIBED IN THE ABOVE SAID CBDTS INSTRUCTIONS. 5. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HA VE WITHDRAWN/ NOT PRESSED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WE ARE ALS O OF THE VIEW THAT THE SAID INSTRUCTIONS ARE APPLICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. 6. DURING THE HEARING, LD. COUNSEL OF THE ASSESSEE HAS NOT PRESSED THE CROSS OBJECTION, HENCE, THE SAME IS DISMISSED AS NOT PRESSED. ITA NO. 1016/DEL/2014 & CO NO. 303/DEL/2014 4 7. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/02/2016. SD/- SD/- (L.P. SAHU) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 03/02/2016 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR