M/s. H K Vivek Overseas Pvt. Ltd., New Delhi V. ITO, New Delhi

CO 91/DEL/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0535 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 29-04-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 27-04-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 06-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVI PRATAP MULL
• Assessee Lawyers: T VASANTHAN
• Keywords: Tax effect

Judgement Text

ITA NO. 5558/DEL/2012 ASSTT.YEAR: 2007-08 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO.5558/DEL/2012 ASSTT.YEAR: 2007-08 INCOME TAX OFFICER, VS M/S H.K. VIVE K OVERSEAS PVT. LTD., WARD 12(4), H-2, HAUZ KHAS, NEW DELHI-110016 NEW DELHI. C.O. NO.91/DEL/2013 (IN ITA NO.5558/DEL/2012) ASSTT.YEAR: 2007-08 M/S H.K. VIVEK OVERSEAS PVT. LTD., VS INCOME TAX OFFICER, NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI T. VASANTHAN, SR. DR RESPONDENT BY: SHRI RAVI PRATAP MULL, ADV. O R D E R PER C.M. GARG, JUDICIAL MEMBER THIS APPEAL OF THE REVENUE AS WELL AS C.O. OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT(A)-XV, NEW DELHI DATED 2.8.2012 IN APPEAL NO. 389/09-10 FOR AY 2007-08. 2. AT THE VERY OUTSET, LD. COUNSEL OF THE ASSESSEE SUBMITTED A CALCULATION OF TAX EFFECT INVOLVED IN THE APPEAL AND GROUNDS RAISE D BY THE REVENUE WHICH ITA NO. 5558/DEL/2012 ASSTT.YEAR: 2007-08 2 COMES TO RS. 3,53,430. THE LD. DR FAIRLY ACCEPTED THAT THE SAID TAX EFFECT AS CALCULATED BY THE ASSESSEE IS CORRECT IN THE INSTAN T APPEAL OF THE REVENUE. 3. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT AS PE R LATEST CBDT CIRCULAR NO. 5 OF 2014 DATED 10.7.2014, THE MANDATORY LIMIT HAS BEEN REVISED BY CBDT TO RS. 4,00,000 FOR FILING APPEAL BY THE REVENUE BE FORE THE TRIBUNAL, THEREFORE, THE PRESENT APPEAL OF THE REVENUE IS NOT MAINTAINAB LE AND THE SAME DESERVES TO BE DISMISSED. LD. DR SUBMITTED THAT THE PRESENT AP PEAL WAS FILED ON 2.11.2012 WHEN CBDT INSTRUCTION NO. 5 OF 2014 (SUPRA) WAS NOT IN EXISTENCE AND, THEREFORE, THE PRESENT APPEAL IS MAINTAINABLE AS PE R CBDT INSTRUCTIONS EFFECTIVE ON THE DATE OF FILING OF APPEAL. 4. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS AN D CAREFUL PERUSAL OF THE RELEVANT MATERIAL PLACED ON RECORD, WE NOTE THAT TH E CBDT INSTRUCTION OR DIRECTION ISSUED TO THE INCOME TAX AUTHORITIES ARE BINDING ON THEM, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN WH ICH TAX EFFECT IS LESS THAN RS. 4 LAKH AS MENTIONED IN CBDT INSTRUCTION NO. 5 OF 20 14. ON THIS ISSUE, WE RESPECTFULLY TAKE COGNIZANCE OF THE DECISION OF HON BLE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS DELHI RACE CLU B LTD. IN ITA NO. 128/2008 ORDER DATED 03.03.2011 WHEREIN THEIR LORDSHIPS, BY FOLLOWING THE EARLIER ORDER OF HONBLE HIGH COURT IN THE CASE OF CIT VS M/S P.S. J AIN & CO. IN ITA NO. 179/1991 DATED 2.8.2010, HELD THAT SUCH CIRCULAR WO ULD ALSO BE APPLICABLE TO THE ITA NO. 5558/DEL/2012 ASSTT.YEAR: 2007-08 3 PENDING CASES, MEANING THEREBY THAT CBDT INSTRUCTIO N NO. 5 OF 2014 IS ALSO APPLICABLE TO THE PRESENT APPEAL WHICH IS PENDING. 5. FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HI GH COURT, IT IS CLEAR THAT INSTRUCTION NO. 5 OF 2014 (SUPRA) IS APPLICABLE FOR PENDING CASES ALSO. THEREFORE, KEEPING IN VIEW THE RATIO LAID DOWN IN T HE AFORESAID CITED CASES, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO. 5 O F 2014 DATED 10.7.2014 ISSUED BY CBDT IS APPLICABLE TO THE PRESENT CASE AND TAX E FFECT LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS RS. 4 LAKH OR MORE, M EANING THEREBY THE CASES WHICH HAVE TAX EFFECT LESS THAN RS. 4 LAKH ARE NOT MAINTAINABLE BEFORE THE TRIBUNAL. IN VIEW OF ABOVE, WE ARE INCLINED TO HOL D THAT THE PRESENT APPEAL OF THE REVENUE IS NOT MAINTAINABLE DUE TO LOW TAX EFFE CT LESS THAN THE PRESCRIBED LIMIT, THEREFORE, WE DISMISS THE SAME IN LIMINE BE ING NOT MAINTAINABLE. C.O. OF THE ASSESSEE 6. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE C ROSS OBJECTION OF THE ASSESSEE MAY KINDLY BE ADJUDICATED ON MERITS. LD. DR CONTENDED THAT SINCE THE APPEAL OF THE REVENUE IS NOT FOUND TO BE MAINTAINAB LE, THE CROSS OBJECTION OF THE ASSESSEE DOES NOT SURVIVE FOR CONSIDERATION. ON CA REFUL CONSIDERATION OF ABOVE SUBMISSIONS, WE ARE OF THE CONSIDERED VIEW THAT SIN CE THE APPEAL OF THE REVENUE HAS BEEN DISMISSED IN LIMINE DUE TO LOW TAX EFFECT, THEN THE CO OF THE ASSESSEE CANNOT BE CONSIDERED AND THE SAME DOES NOT SURVIVE FOR ADJUDICATION AND WE DISMISS THE SAME AS BEING INFRUCTUOUS. ITA NO. 5558/DEL/2012 ASSTT.YEAR: 2007-08 4 7. IN THE RESULT, THE APPEAL OF THE REVENUE AND CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.04.2015. SD/- SD/- (R.S. SYAL) (CHANDRAMOHAN GARG ) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 29TH APRIL 2015 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. C.I.T. 5. DR BY ORDER ASSTT. REGISTRAR