M/s Austin Brenner Remedies (P) Ltd., Delhi V. ITO, New Delhi

CO 34/DEL/2010

• Counselvise Citation: [2016] 119 COUNSELVISE.COM (IT) 3219 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 2 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-04-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 15-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: ASHISH CHADHA
• Keywords: Tax effect
• Section: 12A

Judgement Text

1 ITA NO. 4617/DEL/2009 AND CO. 34/D/2010 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH, JM ITA NO. 4617/DEL/2009 : ASSTT. YEAR : 2002-03 ITO WARD 2(2), ROOM NO. 389A, C.R. BLDG, I.P. ESTATE, NEW DELHI. VS AUSTIN BRENNER REMEDIES (P) LTD. 126-A, PKT. 6, DDA MIG KONDLI, PHASE-II, DELHI. AADCA4654L (APPELLANT) (RESPONDENT) & CO NO. 34/DEL/2010 : ASSTT. YEAR : 2002-03 AUSTIN BRENNER REMEDIES (P) LTD. 126-A, PKT. 6, DDA MIG KONDLI, PHASE-II, DELHI. AADCA4654L VS ITO WARD 2(2), ROOM NO. 389A, C.R. BLDG, I.P. ESTATE, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. VED JAIN, ADV. & SH. ASHISH CHADH A, CA REVENUE BY : SH. K.K. JAISWAL, DR DATE OF HEARING : 19.04.2016 DATE OF PRONOUNCEMENT : 21.04.2016 ORDER PER N. K. SAINI, AM: THIS APPEAL BY THE DEPARTMENT AND THE CROSS OBJECT ION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 17/09 /2009 OF THE CIT(A)-V, NEW DELHI. 2 ITA NO. 4617/DEL/2009 AND CO. 34/D/2010 2. IN THE DEPARTMENTAL APPEAL FOLLOWING GROUNDS HAV E BEEN RAISED: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD . CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE PR OTECTIVE ADDITION OF RS. 78,35,000/-, SUBSTANTIVE ADDITION O F RS. 78,350/- IGNORING THAT: A) THE ASSESSEE COMPANY IS FOUND TO BE AN ENTRY OPERAT IVE WITHOUT ANY EXISTENCE OF BUSINESS. B) THE ASSESSEE COMPANY DOES NOT HAVE ANY GODOWN, OFFI CE, SHOP, FACTORY OR ANY OTHER INFRASTRUCTURE REQUIRED FOR ACTIVE RUNNING FOR BUSINESS. C) THE ASSESSEE HAS NO ACTUAL INCOME AS SUCH CREDITWORTHINESS FOR ADVANCING OF RS. 78,35,000/- W AS NOT PROVED. D) THE FACTS OF THE PRESENT CASE ARE DIFFERENT AND CAS ES RELIED UPON BY THE LD. CIT(A) ARE NOT OF THOSE ENTRY OPERA TORS. 2. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUNDS OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE AT THE VERY OUTSET STATED THAT THE ASSESSM ENT FRAMED WAS PROTECTIVE AND NO TAX WAS INVOLVED. THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN V IEW OF THE LATEST CIRCULAR NO.21 DATED 10.12.2015 ISSUED BY TH E CBDT, VIDE WHICH IT HAS REVISED THE MONETARY LIMIT TO RS. 10,00,000/- FOR NOT FILING THE APPEAL BEFORE THE TRIBUNAL. THE RELEVANT PORTION OF THE SAID CIRCULAR READS AS UNDER: .. 3 ITA NO. 4617/DEL/2009 AND CO. 34/D/2010 ... 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S. NO APPEALS IN INCOME -TAX MATTER MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 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 C ASES IS TO BE DECIDED ON MERITS OF THE CASE. 9. THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE SH ALL NOT APPLY TO WRIT MATTERS AND DIRECT TAX MATTERS OT HER THAN INCOME TAX. FILING OF APPEALS IN OTHER DIRECT TAX MATTERS SHALL CONTINUE TO BE GOVERNED BY RELEVANT PROVISIONS OF STATUTE & RULES. FURTHER, FILING OF A PPEAL IN CASES OF INCOME TAX, WHERE THE TAX EFFECT IS NOT QUANTIFIABLE OR NOT INVOLVED, SUCH AS THE CASE OF REGISTRATION OF TRUSTS OR INSTITUTIONS UNDER SECTIO N 12A OF THE IT ACT, 1961, SHALL NOT BE GOVERNED BY THE LIMI TS SPECIFIED IN PARA 3 ABOVE AND DECISION TO FILE APP EAL IN SUCH CASES MAY BE TAKEN ON MERITS OF A PARTICULAR C ASE. 4 ITA NO. 4617/DEL/2009 AND CO. 34/D/2010 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 WITHDRA WN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERA TIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4. FROM CLAUSE 10 OF THE ABOVE SAID CIRCULAR IT IS CLEAR THAT THESE INSTRUCTIONS ARE APPLICABLE TO THE PENDING AP PEALS ALSO AND AS PER CLAUSE 3, THERE IS CLEAR CUT INSTRUCTION TO THE DEPARTMENT TO WITHDRAW OR NOT TO PRESS THE APPEALS FILED BEFORE THE ITAT WHEREIN TAX EFFECT IS LESS THAN RS. 10,00,000/-. THESE INSTRUCTIONS ARE OPERATIVE RETROSPECTIVELY TO THE PENDING APPEALS. 5. KEEPING IN VIEW THE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12.2015 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. 6. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE DEPARTMENT . 5 ITA NO. 4617/DEL/2009 AND CO. 34/D/2010 7. IN THE PRESENT CASE, THE LD. CIT(A) HAS ALLOWED THE RELIEF TO THE ASSESSEE ON ITS APPEAL AND DEPARTMENTAL APPE AL AGAINST THE ORDER OF THE CIT(A) HAS BEEN DISMISSED. THEREF ORE, THE CROSS OBJECTION ARISING OUT OF THE SAID DEPARTMENTA L APPEAL BECOMES INFRUCTUOUS AND IS DISMISSED. 8. IN THE RESULT, APPEAL OF THE DEPARTMENT AND THE CROSS OBJECTION BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 21.04.2016 SD/- SD/- (KULDIP SINGH) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED: 21.04.2016 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR 6 ITA NO. 4617/DEL/2009 AND CO. 34/D/2010 DRAFT DICTATED ON 21.04.2016 DRAFT PLACED BEFORE AUTHOR 21.04.2016 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 2 1 . 0 4 . 2 0 1 6 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 25.04.2016 KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK 21.04.2016 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.