M/s. Hi- Fine Impex Pvt. Ltd., New Delhi V. ITO, New Delhi

CO 319/DEL/2012

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1197 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 24-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 07-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI , AM AND SMT. SUCHITRA KAMBLE , JM ITA NO. 3298/DEL/2012 : ASSTT. YEAR : 2003 - 04 THE INCOME TAX O FFICER, WARD 12(4), NEW DELHI VS M/S HI - FINE IMPEX PVT. LTD., A - 12, SWASTHYA VIHAR, NEW DELHI - 1100 92 (APPELLANT) (RESPONDENT) CO NO. 319/DEL/2012 : ASSTT. YEAR : 2003 - 04 M/S HI - FINE IMPEX PVT. LTD., A - 12, SWASTHYA VIHAR, NEW DELHI - 110092 VS THE INCOME TAX OFFICER, WARD 12(4), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AA BCH2807A ASSESSEE BY : SH. C. S. ANAND, ADV. REVENUE BY : SH . T. VASANTHAN , SR. DR DATE OF HEARING : 24 . 08 .2015 DATE O F PRONOUNCEMENT : 24.08 .2015 ORDER PER N.K. SAINI, A.M. THIS APPEAL BY THE DEPARTMENT AND THE CROSS OBJECTION OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 11 .04. 2012 OF THE L D. CIT(A) - XV , NEW DELHI . 2 . DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/ - , THEREFORE, THE ITA NO. 3298 /DEL/2012 & CO NO.319/DEL/2012 HI - FINE IMPEX PVT. LTD. 2 DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVI SIONS 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 SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THIS FACT THAT TAX EFFECT IN THIS APP EAL IS 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 HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETRO SPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED I N 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 APPLICAT ION 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 APPLICATION FOR REFEREN CE ON ANY ISSUE IN THE CASE OF ITA NO. 3298 /DEL/2012 & CO NO.319/DEL/2012 HI - FINE IMPEX PVT. LTD. 3 AN ASSESSEE 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 OTH ER 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 NO T 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 THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUN AL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, 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) A ND (4) SHALL APPLY ACCORDINGLY. ITA NO. 3298 /DEL/2012 & CO NO.319/DEL/2012 HI - FINE IMPEX PVT. LTD. 4 5 . IT IS NOT IN DISPUTE THAT THE BOARD S INSTRUCTION OR DIRECTIONS ISSUED TO THE INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES , THEREFORE , THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE SAI D 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 APPEAL. 6 . IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO. 5 OF 2014 DATED 1 0.0 7.2014 , BY WHICH THE CBD T HAS REV ISED 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 201 4 DATED 10 .0 7 .201 4 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, WE ARE OF THE VIEW THAT T HE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT : - 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINAS H GUPTA (2010) 327 ITR 619 (P&H) ITA NO. 3298 /DEL/2012 & CO NO.319/DEL/2012 HI - FINE IMPEX PVT. LTD. 5 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 D ATED 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. 9 . FROM THE RATIO LAID DOWN BY THE HON BLE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISS UED 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 /1 4 DATED 1 0.0 7 .201 4 ISSUED BY THE CBDT ARE APPLIC ABLE 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 LAKH S. 1 0 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 1 1 . AT THE TIME HEARING, THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS THE CROSS OBJECTION FILE D BY THE ASSESSEE . ITA NO. 3298 /DEL/2012 & CO NO.319/DEL/2012 HI - FINE IMPEX PVT. LTD. 6 ACCORDINGLY, CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED, BEING NOT PRESSED. 12 . IN THE RESULT, APPEAL OF THE REVENUE AND CROSS OBJECTIO N OF THE ASSESSEE ARE DISMISSED . ( ORDER PRON OUNCED IN THE COURT ON 24/08 / 2015) . SD/ - SD/ - (SUCHITRA KAMBLE ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/08 /2015 *SUBODH* COPY FORWARD ED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR