M/s. Mars Tobacco Co., New Delhi V. ITO, New Delhi

CO 45/DEL/2010

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1416 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 8 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 24-11-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 25-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Retrospective amendment; Tax effect
• Section: 147; 148

Judgement Text

ITA NO.4901/DEL/2009 & CO NO. 45/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 4901 /DEL/20 09 A.Y. : 200 1 - 0 2 ITO, WARD 6(2), ROOM NO. 185, C.R. BUILDING, NEW DELHI VS. M/S MARS TOBACCO CO. (P) LTD., B-71, F.F. FLATTED FACTORY COMPLEX, OKHLA, PHASE-III, DELHI 52 (PAN:AAACM 8366 J) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) AND AND AND AND C.O. NO. 45 / DEL/20 10 (IN ITA NO. 4901/DEL/2009) A.Y. : 200 1 - 0 2 M/S MARS TOBACCO CO. (P) LTD., B-71, F.F. FLATTED FACTORY COMPLEX, OKHLA, PHASE-III, DELHI 52 (PAN:AAACM 8366 J) VS. ITO, WARD 6(2), ROOM NO. 185, C.R. BUILDING, NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. P. DAM KANUNJNA, SR. DR ASSESSEE BY : SH. TARUN KUMAR, ADV. & SH. SOMIL AGGARWAL, ADV. DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 2 22 24 44 4- -- -1 11 11 11 1- -- -201 201 201 2015 55 5 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 2 22 24 44 4- -- -1 11 11 11 1- -- -201 201 201 2015 55 5 ITA NO.4901/DEL/2009 & CO NO. 45/DEL/2010 2 ORDER ORDER ORDER ORDER THIS APPEAL FILED BY THE REVENUE AND CROSS OBJECTI ON FILED BY THE ASSESSEE EMANATE OUT OF THE COMMON ORDER DATED 24. 9.2009 PASSED BY THE LD. CIT(A)-IX, NEW DELHI PERTAINING TO ASSES SMENT YEAR 2001-02. FOR THE SAKE OF CONVENIENCE, WE ARE PROCEEDING TO D ISPOSE OFF THE APPEAL AND CROSS OBJECTIONS BY THIS CONSOLIDATED OR DER. 2. THE GROUNDS RAISED IN THE REVENUES APPEAL READ AS UNDER:- 1. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND CON TRARY TO FACTS AND LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS DELETED THE ADDITION OF RS. 10,00,000/- MADE BY AO U/.S. 68 BEING THE UNEXPLAILNED CASH CREDITS. 2.1 THE LD. CIT(A) IGNORED THE FACT THAT THE ASSESS EEE DID NOT DISCHARGE THE ONUS OF PROVING THE CREDIT WORTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTIONS. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, OR AMEND ANY GROUNDS OF THE APPEAL RAISED ABVOE AT THE TIME OF THE HEARING. 3. THE GROUNDS RAISED IN THE ASSESSEES CROSS OBJEC TION READ AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTAN CES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT QUASHING THE IMPUGNED ASSESSMENT ORDER PASSED BY THE AO THAT TOO WITHOUT ITA NO.4901/DEL/2009 & CO NO. 45/DEL/2010 3 ASSUMING JURISDICTION AS PER LAW IN AS MUCH AS MAND ATORY NOTICE U/S. 148 WAS NOT SERVED UPON THE ASSESSEE AND LD. CIT(A) OUGHT TO HAVE QUASHED THE IMPUGEND ASSESSMENT ORDER ON TH IS GROUND. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ACTION OF AO IN ASSUMING JURISDICTION U/S. 147 AND THAT TOO WITHOUT COMPLYING WITH THE MANDATORY CONDITIONS AS PRESCRIB ED UNDER SECTION 147 TO 151 OF THE INCOME TAX ACT, 1961. 3. THAT IN ANY CASE AN IN ANY VIEW OF THE MATTER AC TION OF LD. CIT(A) IN CONFIRMING THE ACTION OF THE AO IN REOPEN ING THE CASE IS BAD IN LAW AND AGAISNT THE FACTS AND CIRCUMSTNACES OF THE CASE. 4. THAT THE CROSS OBJECTOR CRAVES THE LAVE TO WITHO UT PREJUDICE, UNDER THE FACTS AND CIRCUMSTANCES, THE PROCEEDINGS U/S. 147/148 ARE ILLEGAL, UNWARRANTED AND WITHOUT JURISDICTION, THUS, NON MAINTAINABLE. 4. AT THE THRESHOLD, LD. COUNSEL OF THE ASSESSEE S TATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 4,00,000/-, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL I N VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONT AINED IN THE SECTION 268A OF THE INCOME TAX ACT, 1961 (HEREINAFT ER TO BE REFERRED AS THE ACT). 5. LD. DR SUPPORTED THE ORDER OF THE AO. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED ITA NO.4901/DEL/2009 & CO NO. 45/DEL/2010 4 BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/1999. THE RELEVANT PROVISIONS CONTAINED IN SECTION 268A R EAD AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSU E ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTHORITIES, FIXI NG SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGUL ATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME-TAX AUTH ORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTION S OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PREC LUDE 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 YEA R; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER AS SESSMENT YEAR; (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO T HE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIESCE D IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APP EAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUC TIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NO T FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH H AS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL O R 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. 7. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE OTHER INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED T HE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX E FFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. ITA NO.4901/DEL/2009 & CO NO. 45/DEL/2010 5 8. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTI ON NO. 5/2014 DATED 10 TH JULY, 2014, BY WHICH THE CBDT HAS REVISED THE MONE TARY LIMIT TO RS. 4,00,000/- FOR FILING THE APPEAL BEFORE THE TRIBUNA L. 9. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 20 14 DATED 10 TH JULY, 2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, I AM OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING S UCH A VIEW, I FORTIFY BY THE FOLLOWING DECISIONS OF THE HONBLE PUNJAB & HARYANA HIGH COURT: 1. CIT VS. OSCAR LABORATORIES P. LTD. (2010) 324 ITR 1 15 (P&H); 2. CIT VS. ABINASH GUPTA (2010) 327 ITR 619 (P&H); 3. CIT VS. VARINDERA CONSTRUCTION CO. (2011) 331 ITR 4 49 (P&H) (FB). 10. SIMILARLY, THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008, ORDER DATED 03. 03.2011 BY FOLLOWING THE EARLIER ORDER DATED 02.08.2010 IN ITA NO. 179/1991 IN THE CASE OF CIT DELHI-III VS. M/S P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 11. THUS, FROM THE RATIO LAID DOWN BY THE HONBL DE LHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY K EEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASE, I AM OF THE CONSIDERED VIEW THAT INSTRUCTION NO. 5 OF 2014 DATE D 10 TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING C ASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT F ILING THE APPEAL BEFORE THE ITAT IS RS. 4,00,000/-. 12. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, I DISMISS THE APPEAL FILED BY THE REVENUE. 14. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ITA NO.4901/DEL/2009 & CO NO. 45/DEL/2010 6 ASSESSEES CROSS OBJECTION 15. SINCE WE HAVE ALRADY DISMISSED THE REVENUES A PPEAL AS AFORESAID, THE ASSESSEES CROSS OBJECTION HAS BECOM E INFRUCTUOUS HENCE, THE SAME IS DISMISSED AS INFRUCTUOUS. 16. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED AND CROSS OBJECTION FILED BY THE ASSESSEE IS ALSO D ISMISSED, AS INFURCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT 24-11-2015. S SS SD DD D/ // /- -- - S SS SD DD D/ // /- -- - [PRASHANT MAHARISHI] [PRASHANT MAHARISHI] [PRASHANT MAHARISHI] [PRASHANT MAHARISHI] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 24/11/2015 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY COPY COPY COPY FORWARDED TO: FORWARDED TO: FORWARDED TO: FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES