ITO, New Delhi V. Shri Sanjay Kumar, New Delhi

ITA 1234/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91255 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 15-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 13-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Keywords: Retrospective amendment; Additional evidence; Tax effect

Judgement Text

1 ITA NO.1234. DEL.12 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. N. K. SAINI, ACCOUNTANT MEMBER I.T.A .NO. -1234/DEL/2012 (ASSESSMENT YEA R-2007-08) ITO WARD-21(4), ROOM NO-D-6, VIKAS BHAWAN NEW DELHI (APPELLANT) VS SANJAY KUMAR E-15/168, SECTOR-8, ROHINI NEW DELHI AKEPK4740P (RESPONDENT) APPELLANT BY SH. B. R. R. KUMAR, 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 19/1/2012 OF CIT (A) XXII PERTAINING TO 2007- 08 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.12,71,500/ - AND ACCEPTING THE ADDITIONAL EVIDENCES EVEN WHEN THE ASSESSING OF FICER IN THE REMAND REPORT REQUESTED FOR NOT ADMITTING THE ADDIT IONAL EVIDENCES. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN ACCEPTING THE ADDITIONAL EVIDENCES, WI THOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSING OFFICER TO CROSS-C HECK AND VERIFY THOSE EVIDENCES, IN VIEW OF PROVISIONS OF RULE-46A OF THE INCOME-TAX ACT RULES. 2. HOWEVER, AT THE TIME OF HEARING AN ADJOURNMENT P ETITION HAS BEEN MOVED ON BEHALF OF THE ASSESSEE. CONSIDERING THE FACT THA T THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL WAS ONLY RS.3,60,000/- THE ADJOU RNMENT REQUEST WAS DATE OF HEARING 15.06.2015 DATE OF PRONOUNCEMENT .06.2015 2 ITA NO.1234. DEL.12 REJECTED AND AFTER HEARING THE LD. SR. DR, DR. B. R . R. KUMAR FOLLOWING THE JUDICIAL PRECEDENT THE DEPARTMENTAL APPEAL WAS DIRE CTED TO BE DISMISSED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 3. ADDRESSING THE REASONS FOR THE SAID DECISION THE RECORD SHOWS THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/ - AS PER THE LATEST CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONT AINED IN SECTION 268A OF THE INCOME TAX ACT, 1961 (HEREINAFT ER TO BE REFERRED AS THE ACT) THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL. THE SAID POSITION WAS NOT CONTROVERTED BY THE LD. SR. D R ALTHOUGH HE SUPPORTED THE ORDER OF THE A.O. 4. CONSIDERING THE SUBMISSIONS OF THE LD. D.R. AND THE MATERIAL ON RECORD AND THE FACT THAT SECTION 268A HAS BEEN I NSERTED 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 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, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME- TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFEREN CE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL 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 YEAR; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER AS SESSMENT 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 DIRECTIONS ISSUED UND ER 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 3 ITA NO.1234. DEL.12 ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL 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 CIR CUMSTANCES 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 HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILI NG AN APPEAL 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.] 5. 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. 6. 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. 7. 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, WE ARE OF THE VIEW THAT THE REVENUE SHOU LD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAK ING SUCH A VIEW, WE ARE 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) 1. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 4 ITA NO.1234. DEL.12 2. CIT V VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H)(FB). 8. 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 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. 9. 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, WE ARE 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. 10. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 11. IN THE RESULT, APPEAL OF THE REVENUE STAND DISM ISSED. (ORDER PRONOUNCED IN THE COURT ON 19/06/2015). THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19 TH OF JUNE 2015. SD/- SD/- (N. K. SAINIA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19/06/2015 *R. NAHEED* 5 ITA NO.1234. DEL.12 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 15.06.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 16.06.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS .06.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK .06.2015 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. 6 ITA NO.1234. DEL.12