Sh. Anil Kumar Gupta, Delhi V. ITO, New Delhi

CO 329/DEL/2010

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 5273 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 04-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 29-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PEEYUSH SONKAR
• Assessee Lawyers: MOHD SHOAB
• Keywords: Question of law; Block assessment; Tax effect
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : A NEW DELHI) BEFORE SHRI G.E. VEERABHADRAPPA, HOHBLE VICE PRESIDENT AND SHRI A.D. JAIN , JUDICIAL MEMBER I.T.A. NO.4146/DEL./2010 (ASSESSMENT YEAR : 2006-07) ITO, WARD 36(2), VS. SHRI ANIL KUMAR GUPTA, NEW DELHI. A-17, SWASTHYA VIHAR, DELHI. (PAN/GIR NO.AAPG8233B) AND C.O. NO.329/DEL./2010 (IN ITA NO.4146/DEL./2010) ASSESSMENT YEAR : 2006-07 SHRI ANIL KUMAR GUPTA, VS. ITO, WARD 36(2), DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : MOHD. SHOAB, ADV. REVENUE BY : SHRI PEEYUSH SONKAR, SR.DR ORDER PER A.D. JAIN, JM THE DEPARTMENT HAS FILED THIS APPEAL AGAINST THE ORD ER OF CIT(APPEALS)-XXVII, NEW DELHI AND THE ASSESSEE HAS FILED THE CROSS OBJECTION, PASSED IN APPEAL NO. 51/08-09 DATED 16.02. 2010 FOR THE ASSESSMENT YEAR 2006-07. 2. IN THIS CASE, THE TAX EFFECT IS ADMITTEDLY BELOW `2 LAKHS. THEREFORE, IT WAS PLEADED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE AND MAY BE DISMISSED IN LIMINE. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE. AS PER C.B.D.T. INSTRUCTION NO. 5 DATED 16.7.2007, CLARIFYING THE ME ANING OF TAX EFFECT AS GIVEN IN BOARDS INSTRUCTION NO.2/2005, DAT ED 24.10.2005, IT IS PROVIDED THAT TAX EFFECT MEANS TAX EXCLUDING IN TEREST. THUS, ONLY THE EFFECT OF INCOME-TAX IS TO BE SEEN AND NOT THE IN TEREST THEREON. WHILE CONSIDERING THE EFFECT OF INSTRUCTION NO.2 DATE D 24.10.2005, ITAT DELHI BENCHES ARE CONSISTENTLY TAKING THE VIEW THAT RE VENUE AUTHORITIES MUST GIVE RESPECT TO THE C.B.D.T. CIRCULARS AND SHOULD NOT FILE APPEAL IN SMALL AND PETTY CASES. THE WHOLE IDEA OF THE CIRCULAR IS NOT TO WASTE ENERGY OF THE DEPARTMENT ON SMALL MATTERS AND SAVE IT FOR HIGH-TAX YIELDING CASES. JURISDICTIONAL HIGH COURT IN CASE OF CI T VS. MANISH BHAMBRI VIDE ORDER DATED 1.8.2007 IN I.T.A. NO.683/ DEL/07, HAVE UPHELD THE ORDER OF THE ITAT VIDE WHICH THE APPEAL FILED BY THE REVENUE WAS REFUSED TO BE ENTERTAINED BECAUSE OF THE LOW INCOM E-TAX. THE SAID ORDER OF HONBLE JURISDICTIONAL HIGH COURT IS REPRODU CED BELOW FOR THE SAKE OF CONVENIENCE:- THE REVENUE IS AGGRIEVED BY AN ORDER DATED 8TH AUGUST , 2006 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, DELHI BE NCH 'D' IN IT(SS) NO. 513/DEL/2003 RELEVANT FOR THE BLOCK PERI OD 1ST APRIL, 1990 TO 14TH FEBRUARY, 2001. THE QUESTION THAT AROSE BEFORE THE ASSESSING OFFICER WAS W ITH REGARD TO CERTAIN DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE AND SINCE THE AMOUNTS WERE NOT EXPLAINED, TAX WAS LEVI ED. IN APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) A CCEPTED THE VIEW CANVASSED BY THE ASSESSEE AND HELD THAT THE EXPLANATION GIVEN BY HIM WAS ACCEPTABLE AND, IN ANY CASE, THE ASSESSEE CANNOT BE EXPECTED TO RECOLLECT EACH AND EVERY ENTRY MADE IN THE BANK. IT MAY BE MENTIONED THAT THE AMOUNT IN DISPUTE IS RS. 30,000/- FOR THE ASSESSMENT YEAR 1999-2000 AND RS.83,000/- FOR THE ASSESSMENT YEAR 2001-2002. IT MAY ALSO BE MENTIONED THAT FOR THE ASSESSMENT YEAR 1999-2000, THE ASSESSING OFFICER HAS ALREADY ACCEPTED THE EXPLANATION WITH REGARD TO A G IFT OF RS.60,000/-. AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX ( APPEALS),- AN APPEAL WAS FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE TRIBUNAL FOUND THAT IN VIEW OF INSTRUCTIONS ISSUED BY THE CBDT WHERE THE TAX EFFECT IS LESS THAN RS.L LAC, THE DEPARTM ENT SHOULD NOT FILE AN APPEAL BEFORE THE TRIBUNAL. IN THE PRESE NT CASE, THE TAX EFFECT IS LESS THAN RS.L LAC. UNDER THE CIRCUMSTANCES, TH E TRIBUNAL DID NOT ENTERTAIN THE APPEAL. THE REVENUE, FEELING AGGRIEVED BY THE DECISION OF TH E TRIBUNAL, HAS COME UP BEFORE US UNDER SECTION 260A OF THE INCOM E TAX ACT, 1961. IT IS CONTENDED BY LEARNED COUNSEL FOR THE REVE NUE THAT THE TRIBUNAL IS A FACT FINDING AUTHORITY AND SHOULD HAVE ADJUDICATED THE MATTER ON MERITS. WE ARE OF THE VIEW THAT THE ISSU E RAISED BY THE REVENUE IS NOT AT ALL SUBSTANTIAL AND THE AMOUNT IN DISPUTE IS QUITE INSIGNIFICANT, CONSIDERING THAT THE CASE IS ONE OF A BLOCK ASSESSMENT. THERE IS NO JUSTIFICATION FOR THE INCOME TAX DEPARTMENT TO GO ON BURDENING THE TRIBUNAL, THE COU RT WITH EVERY CASE RIGHT UP TO THE END. APART FROM BURDENING THE T RIBUNAL AND COURTS, IT ALSO CAUSES AVOIDABLE EXPENSES TO THE ASSESSEE. I T IS COMMON KNOWLEDGE THAT THE ASSESSEE HAS TO PAY FOR LEGAL FEES AND MERELY BECAUSE THE INCOME TAX DEPARTMENT HAS GOT UNLIMITED RESOURCES, THERE IS NO JUSTIFICATION THAT EVE RY CASE SHOULD BE DRAGGED ON. UNDER THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE TRIBUNAL WAS JUSTIFIED IN REFUSING TO ENTERTAIN THE APPEAL BECA USE OF THE INSIGNIFICANT AMOUNT INVOLVED IN THE MATTER. NO SUBST ANTIAL QUESTION OF LAW ARISES. WE, THEREFORE, DISMISS THIS APPEAL. 4. RESPECTFULLY FOLLOWING THIS ABOVE DECISION, THE APP EAL FILED BY THE DEPARTMENT IS DISMISSED AND THAT OF THE ASSESSEE IS ALLOWED . 5. ORDER PRONOUNCED IN THE OPEN COURT TODAY ON 4 TH NOVEMBER, 2010, AFTER CONCLUSION OF THE HEARING. SD/- SD/P (G.E. VEERABHADRAPPA) (A.D. JAIN) VICE PRESIDENT JUDICIAL MEMBER DATED, 04/11/2010. SKB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES