ITO, New Delhi V. Mrs. Neelam Jain, Noida

ITA 1005/DEL/2012

• Counselvise Citation: 100520114 RSA 2012
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 27-11-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 29-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Retrospective amendment; Additional evidence; Corroborative evidences; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1005/DEL/2012 ASSESSMENT YEAR: 2001-02 INCOME TAX OFFICER, VS. MRS. NEELAM JAIN, WARD-41(4), A-19, SECTOR-15, NOIDA (UP) ROOM NO. 418, MAYUR BHAWAN, NEW DELHI (PAN: ADMPJ6888N) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P. DAM KANUNJNA, SR . DR RESPONDENT BY : SH. KAPIL GOEL, ADV. DATE OF HEARING : 27-11-2015 DATE OF ORDER : 02-12-2015 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 15.12.2011 OF LD. CIT(A)-XIX, NEW DELHI PERTAININ G TO ASSESSMENT YEAR 2001-02. 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTME NT READ AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN 1) ADMITTING THE ADDITIONAL EVIDENCE U/S. 46A. 2) DELETING THE ADDITIONS OF RS. 75,600/- MADE BY HUSB AND OF THE ASSESSEE THROUGH BANK CHEQUE FROM HIS SAVING BANK IN ABSENCE OF SUPPORTING DOCUMENTS. 3) DELETING THE ADDITION OF RS. 6,17,039/- OUT OF RS. 6,67,039/- MADE ON ACCOUNT OF CASH CREDITS IN HER B ANK A/C WITH IOB, SHEIKH SARAI, NEW DELHI IN ABSENCE OF SUPPORTING EVIDENCE. 4) DELETING THE ADDITION OF RS. 60,000/- OUT OF RS. 74,500/- MADE ON ACCOUNT OF CREDIT ENTRIES IN THE S B A/C ITA NO. 1005/DEL/2012 2 WITH SYNDICATE BANK U/S. 68 IN THE ABSENCE OF SUPPORTING EVIDENCE. 5) DELETING THE ADDITION OF RS. 1,107,500/- MADE ON ACCOUNT OF CASH DEPOSIT. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 3. AT THE TIME OF HEARING, SH. KAPIL GOEL, LD. CO UNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/-, THEREFORE, THE DEPARTMENT OUGHT NO T TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT A ND THE PROVISIONS CONTAINED IN THE SECTION 268A OF THE INCOME TAX ACT , 1961. 4. LD. DR SUPPORTED THE ORDER OF THE AO. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/1999. THE RELEVANT PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSU E ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTH ORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PU RPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFE RENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PROVISIONS OF THIS C HAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTION S OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORI TY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON AN Y ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHA LL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR AP PLICATION 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 THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER S UB-SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PAR TY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSU E BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN AN Y 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 CIR CUMSTANCES ITA NO. 1005/DEL/2012 3 UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENC E WAS FILED OR NOT 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 A PPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE B EEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SEC TIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. 6. 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 EFFE CT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING T HE APPEAL. 7. 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 TRIBUNAL. 8. 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, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NO T HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING S UCH A VIEW, WE ARE FORTIFIED 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). 9. SIMILARLY, THE HONBLE DELHI HIGH COURT IN THE C ASE 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. 179/1 991 IN THE CASE OF CIT DELHI-III VS. M/S P.S. JAIN & CO. HELD THAT SUC H CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 10. 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 KEEPING IN V IEW THE RATIO LAID DOWN ITA NO. 1005/DEL/2012 4 IN THE AFORESAID REFERRED TO CASE, WE ARE OF THE CO NSIDERED VIEW THAT INSTRUCTION NO. 5 OF 2014 DATED 10 TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SA ID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4,00,000/-. 11. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 12. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/12/2015. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 02/12/2015 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR