DCIT, New Delhi V. Sh. Raj Kumar Bhargava, New Delhi

ITA 1264/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58764 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 07-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 22-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAMTA KOCHAR
• Assessee Lawyers: R S AHUJA
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI SHAMIM YAHYA ITA NO. 1264/DEL/2010 ASSESSMENT YEAR: 2006-07 DEPUTY CIT, VS. RAJ KUMAR BHARGAVA, CIRCLE 41(1), C-390, DEFENCE COLONY, NEW DELHI. NEW DELHI. (PAN: AADPB9898C) (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. MAMTA KO CHAR, SR.DR RESPONDENT BY: SHRI RS AHUJA, C A DATE OF HEARING : 07.03.2012 DATE OF PRONOUNCEMENT : 07.03.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 06.01.2010 PASSED FOR ASSESSMENT YEAR 2006-07. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT LEARNED C IT(APPEALS) HAS ERRED IN DELETING THE PENALTY OF RS.2,37,998 LEVIED BY THE A SSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT THE PRES ENT APPEAL IS NOT MAINTAINABLE IN VIEW OF THE LATEST INSTRUCTION BEAR ING NO. 3 OF 2011 ISSUED BY THE CBDT ON 9.2.2011. HE POINTED OUT THAT ACCORD ING TO THESE INSTRUCTIONS IF THE TAX EFFECT ON ACCOUNT OF ORDER OF THE LEARNED CIT(APPEALS) IS LESS THAN RS. 3 LACS THEN REVENUE O UGHT NOT TO APPEAL BEFORE 2 THE ITAT. LEARNED COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. M/S . PS JAIN & CO. REPORTED IN 335 ITR 591 HAS OBSERVED THAT THESE INSTRUCTIONS WILL BE APPLICABLE ON PENDING APPEALS. IN VIEW OF THE ABOVE, HE PRAYED TH AT THE APPEAL OF THE REVENUE BE DISMISSED AS NOT MAINTAINABLE. 2. LEARNED DR ON THE OTHER HAND WAS UNABLE TO CONTR OVERT THE CONTENTIONS RAISED BY THE LEARNED COUNSEL FOR THE A SSESSEE. 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. CBDT HAS ISSUED INSTRUCTIONS BEAR ING NO.3 OF 2011 ON 9.2.2011. THE BOARD HAS INSTRUCTED THE SUBORDINATE AUTHORITY NOT TO FILE APPEAL, BEFORE THE HIGHER APPELLATE FORM IF THE TAX EFFECT IS BELOW THE MONITORY LIMIT FOR FILING THE APPEAL BEFORE THE CON CERNED AUTHORITIES. THE MONITORY LIMIT FOR FILING AN APPEAL BEFORE THE ITAT AGAINST AN ORDER OF LEARNED CIT(APPEALS) IS RS. 3 LACS. THUS, THE INSTR UCTIONS CONTEMPLATED THAT IF TAX EFFECT ON ACCOUNT OF LEARNED FIRST APPELLATE AUTHORITYS ORDER IS LESS THAN RS. 3 LACS THEN APPEAL SHOULD NOT BE FILED BEF ORE THE ITAT. THE EXCEPTIONS HAVE BEEN PROVIDED IN CLAUSE 8 OF THE IN STRUCTIONS, WHERE THE BOARD HAS OBSERVED THAT IF CONSTITUTIONAL VALIDITY OF THE PROVISION OF THE ACT OR RULES ARE UNDER CHALLENGE OR BOARDS NOTIFICATIO N/INSTRUCTIONS/CIRCULARS 3 HAVE BEEN HELD TO BE ILLEGAL OR ULTRA VIRES OR THER E IS A REVENUE AUDIT OBJECTION WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT , THEN IN SUCH CASES APPEAL WOULD BE FILED IRRESPECTIVE OF THE MONITORY LIMIT. THE CASE OF THE ASSESSEE DOES NOT FALL IN THESE EXCEPTIONS. RESPECT FULLY FOLLOWING THE ORDER OF THE HON'BLE HIGH COURT IN THE CASE OF PS JAIN (S UPRA), WE ARE OF THE VIEW THAT THE PRESENT APPEAL IS NOT MAINTAINABLE. ACCORD INGLY, IT IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 07.03.2 012 SD/- SD/- ( SHAMIM YAHYA ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07/03/2012 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR