DCIT, Meerut V. Sh. Vipul Goyal, Faridabad

ITA 1017/DEL/2014

• Counselvise Citation: 101720114 RSA 2014
• Duration Of Justice: 1 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Next Hearing Date: 01-07-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 20-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Keywords: Retrospective amendment; Additional evidence; Tax effect

Judgement Text

1 ITA NO. 1017/DEL/14 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. -1017/DEL/2014 (ASSESSMENT YEA R-2004-05) DCIT, CENTRAL CIRCLE, MEERUT (APPELLANT) VS SH.VIPUL GOYAL, 579, SECTOR-17, FARIDABAD PAN-ADCPG2917R (RESPONDENT) APPELLANT BY SH. GAGAN SOOD, SR. DR RESPONDENT BY NONE ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AS SAILING THE CORRECTNESS OF THE ORDER DATED 29.11.2013 OF CIT(A) , MEERUT PERTAINING TO 2004-05 ASSESSMENT YEAR. 2. AT THE TIME OF HEARING AN ADJOURNMENT PETITION W AS MOVED ON BEHALF OF THE ASSESSEE HOWEVER, THE LD. SR. DR WAS REQUIRED T O ADDRESS THE AMOUNT OF TAX INVOLVED IN THE PRESENT APPEAL. FOR WHICH PURP OSE THE APPEAL WAS PASSED OVER. IN THE SECOND ROUND WHEN THE APPEAL WAS CALL ED OUT THE LD. SR. DR MR. GAGAN SOOD ADDRESSING THE FOLLOWING GROUNDS RAISED IN THE PRESENT APPEAL SUBMITTED THAT THE TAX EFFECT IS LESS THAN RS. 4,00 ,000/:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW IN ACCEPTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE HIM WHICH WER E NOT PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN VIOL ATION OF RULE 46A OF THE I.T. RULES. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW IN DELETING TH E ADDITION OF RS.10,00,000/- MADE U/S 68 BY ADMITTING EVIDENCES I N VIOLATION OF RULE 46A. DATE OF HEARING 01.07.2015 DATE OF PRONOUNCEMENT 08.07.2015 2 ITA NO. 1017/DEL/14 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.50,000/- BY INCORRECTLY APPRECIATING THE FACTS THAT BALANCE SHEET AND NO BANK ACCOUNT HAS BEEN FILED BY THE ASSESSEE TO SUBSTANTIATE THE CREDITWORTHINESS AND GENUINENES S OF THE TRANSACTION. 4. THAT THE LD. CIT(A HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.42,000/- MADE U/S 69 BEING UNEXPLAIN ED EXPENDITURE IGNORING THE FACT THAT THE BILL WAS IN THE NAME OF THE ASSESSEE AND WAS SEIZED DURING THE SEARCH AND WAS, THEREFORE, AN EVIDENCE IN TERMS OF SECTION 292C OF THE I.T.ACT. 3. WHERE THE TAX EFFECT ADMITTEDLY IS LESS THAN RS. 4,00,000/- WHICH IS THE LIMIT FOR FILING APPEALS BEFORE THE ITAT FOR TH E REVENUE AS PER THE LATEST CIRCULAR ISSUED BY THE CBDT AND THE PROV ISIONS CONTAINED IN SECTION 268A OF THE INCOME TAX ACT, 1961 (HEREIN AFTER TO BE REFERRED AS THE ACT). IN VIEW THEREOF IT IS SEEN T HAT THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL. THE SAID POSI TION WAS NOT CONTROVERTED BY THE LD. SR. DR ALTHOUGH HE SUPPORTE D THE ORDER OF THE A.O. IN THE ABOVE STATED FACTUAL POSITION CONS IDERING THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTH ORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATI ON FOR REFERENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PRO VISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME- TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION F OR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE F OR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORI TY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON TH E SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTION S ISSUED UNDER SUB-SECTION (1), IT SHALL NOT BE LAWFUL FOR A N 3 ITA NO. 1017/DEL/14 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 A PPEAL 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 APPLICATIO N FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILI NG AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISION S OF SUB-SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDING LY.] 4. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THESE AUTHORITIES, THEREFORE, THE PRESENT APPEAL IN VIEW OF THE ABOVE SAID PROVISIONS MENTIONED IN SECTION 268 A OF THE ACT OU GHT NOT TO HAVE BEEN FILED BY THE DEPARTMENT SINCE THE TAX EFFECT I N THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING T HE APPEAL. 5. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTI ON NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REVISE D THE MONETARY LIMIT TO RS. 4,00,000/- FOR FILING THE AP PEAL BEFORE THE TRIBUNAL. 6. KEEPING IN VIEW THE CBDT INSTRUCTION NO.5 OF 201 4 DATED 10.07.2014 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 TAK ING SUCH A VIEW, I AM FORTIFIED BY THE FOLLOWING DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT:- 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 3. CIT V VARINDERA CONSTRUCTION CO. (2011) 331 ITR 4 49 (P&H)(FB). 7. SIMILARLY THE HONBLE DELHI HIGH COURT IN THE CA SE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER DATE D 03.03.2011 BY 4 ITA NO. 1017/DEL/14 FOLLOWING THE EARLIER ORDER DATED 02.08.2010 IN ITA NO.179/1991 IN THE CASE OF CIT DELHI-III V. M/S. P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 8. FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HI GH 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 CASES, I AM OF THE CONSIDERED VIEW THAT INSTRUCTION NO.5/14 DATED 10.0 7.2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES AL SO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILIN G THE APPEAL BEFORE THE ITAT IS RS. 4.00 LAKHS. 9. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, I DISMISS THE APPEAL FILED BY THE REVENUE. THE SAID O RDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES. 10. IN THE RESULT, APPEAL OF THE REVENUE STAND DISM ISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 8 TH OF JULY 2015. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED: 08/07/2015 *AMIT KUMAR/R.N*/KAVITA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 1017/DEL/14 DATE 1. DRAFT DICTATED ON 01.07.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 02.07.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 08.7.2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 08.7.2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 08 .07.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON 08.07.2015 PS 7. FILE SENT TO THE BENCH CLERK 08 .07.2015 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.