ITO, Co. Ward-11(1), V. Energetic Construction (P) Ltd.,

ITA 1378/DEL/2005

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91192 (ITAT-DELHI)
• Duration Of Justice: 10 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 02-06-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 22-03-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA SENIOR
• Assessee Lawyers: ANKIT SAINI
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER ITA NO.1378/DEL./2005 (ASSESSMENT YEAR : 2001-02) ITO, WARD 11 (1), VS. M/S. ENERGETIC CONSTRUCTION S (P) LTD., NEW DELHI. C/O PROF. S. SAMPATH, A 2, GROUND FLOOR, JANGPURA EXTENSION, NEAR DAV PUBLIC SCHOOL, NEW DELHI 110 014. (PAN : AAACE2614H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANKIT SAINI, CA REVENUE BY : SHRI P. DAM KANUNJNA, SENIOR DR DATE OF HEARING : 02.06.2015 DATE OF PRONOUNCEME NT : 02.06.2015 O R D E R PER GEORGE GEORGE K., JUDICIAL MEMBER : THIS APPEAL, AT THE INSTANCE OF THE REVENUE, IS DIR ECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, NEW D ELHI DATED 20.01.2005. THE RELEVANT ASSESSMENT YEAR IS 2001-02 . 2. IN THIS CASE, THE REVENUE HAS COME IN APPEAL AGA INST THE ORDER OF THE LD. CIT (A) THAT THE ASSESSEE HAS RIGHTLY NETTED THE IN TEREST WHILE COMPUTING THE WORK IN PROGRESS AND DELETED THE ADDITION OF RS.13, 17,244/- MADE BY THE 2 ITA NO.1378/DEL/2005 ASSESSING OFFICER BY HOLDING THAT THE INTEREST INCO ME IS ASSESSABLE UNDER THE HEAD OTHER SOURCES IN SPITE OF THE FACT THAT THE BUSINESS OF ASSESSEE HAD NOT COMMENCED UP TO THE END OF PREVIOUS YEAR UNDER CONS IDERATION. THE ASSESSEE FILED RETURN OF INCOME ON 31.10.2001 DECLARING INCO ME OF RS.7,18,825/-. THE AO ASSESSED THE INCOME AT RS.20,36,070/-. THE ASSE SSMENT YEAR IN THE APPEAL IS 2001-02. THE TAX EFFECT ON THE DELETED ADDITION IS LESS THAN THE THRESHOLD LIMIT, I.E. RS.4 LACS. THE APPEAL HAS BEEN FILED I N THE YEAR 2005. 3. AT THE TIME OF HEARING, LD. COUNSEL SUBMITTED AN APPLICATION FOR ADJOURNMENT OF HEARING WHICH HAS BEEN REJECTED AFTE R TAKING INTO ACCOUNT THAT THE TAX EFFECT IN THE APPEAL IS LESS THAN THE THRES HOLD LIMIT I.E. RS.4 LACS. 3. WE FIND THAT THE TAX EFFECT IN THIS CASE IS LE SS THAN RS.4 LACS. AS PER THE RECENT CBDT INSTRUCTION NO.5/2014 DATED 10.07.2014 , THE REVENUE IS NOT PERMITTED TO FILE APPEAL BEFORE THE TRIBUNAL IF T HE TAX EFFECT IS LESS THAN RS.4.00 LAKH. WE FIND SUPPORT FROM THE DECISION OF HONBLE SUPREME COURT DATED 25.03.2011 IN ITA NOS. 3 TO 5/2010. LD. DR FOR THE REVENUE SUBMITTED THAT INSTRUCTION NO. 5/2014 IS NOT APPLICABLE FOR THE APPEALS FILED PRIOR TO ISSUE OF THE SAID INSTRUCTIONS. IT IS ALSO SUBMITTED THAT THE FULL BENCH OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. VIREND RA CONSTRUCTION CO., 239 CTR 1, HELD THAT REVISED MONETARY LIMITS ARE N OT APPLICABLE TO THE PENDING APPEALS, AND IT IS IN FAVOUR OF THE REVENUE. 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH TH E MATERIAL AVAILABLE ON RECORD. INSTRUCTION NO.5/2014 DATED 10.07.2014 H AS REVISED THE MONETARY 3 ITA NO.1378/DEL/2005 LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEF ORE INCOME-TAX APPELLATE TRIBUNAL, HONBLE HIGH COURTS AND HONBLE SUPRE ME COURT. MONETARY LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS RS.4.0 0 LAKH; BEFORE HONBLE HIGH COURT RS. 10.00 LAKH AND BEFORE HONBLE SUPREME C OURT RS. 25.00 LAKH. HONBLE SUPREME COURT IN THE ORDER DATED 25.03.2011 REFERRED TO ABOVE HAS HELD AS UNDER:- IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CASES IS LESS THAN RS. 10.00 LACS. THE DEPARTMENT HAS RECENTL Y ISSUED AN INSTRUCTION BEARING NO. 3/2011 DATED 09.02.2011, WHICH IS IDENTICAL TO ITS EARLIER INSTRUCTION BEARING N O. 5/2008 DATED 15.05.2008 EXCEPT THAT IN SO FAR AS THE HIGH CO URT IS CONCERNED, THE MONETARY LIMIT IN RESPECT OF APPEA LS WHERE THE QUESTIONS OF LAW RAISED NEED NOT TO BE AN SWERED, HAS BEEN RAISED FROM RS. 4.00 LACS TO RS. 10.00 LACS . THE DIVISION BENCH OF THIS COURT IN ITA NO. 89/1999 DECIDED ON 28.01.2011 HAS ALREADY HELD THAT THE INSTRUCTIO N BEARING NO. 5/2008 DATED 15.05.2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. THIS PRINCIPLE WOULD THUS NATURALLY EQUALLY APPLY TO THE INSTANT INSTRUCTIO N BEARING NO.3/2011 DATED 09.02.2011, AS WELL. THE TAX EF FECT BEING LESS THAN RS. 10.00 LACS, THE QUESTION OF LAW DOE S NOT REQUIRE TO BE ANSWERED. THE APPEALS ARE DISPOSED OF ACC ORDINGLY. 4.1 HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008 DATED 03.03.2011 HAS HELD AS UNDER:- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS. 4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LE SS THAN RS. 10.00 LACS, ARE NOT TO BE ENTERTAINED. THIS COURT IN THE CASE OF CIT, DELHI-III VS. M/S P .S. JAIN & CO., BEING ITA NO. 179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 4 ITA NO.1378/DEL/2005 4.2 IN VIEW OF THE ABOVE, INSTRUCTION NO. 5/2014 DATED 10.07.2014 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLL OWING THE PRECEDENT, IT IS HELD THAT THE APPEAL IS NOT MAINTAINABLE IN THE INST ANT CASE AS THE TAX EFFECT IS LESS THAN RS.4 LACS. ACCORDINGLY, IT IS HELD THAT APPEA L FILED BY THE REVENUE IS NOT MAINTAINABLE. 5. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS DISMISSED WITHOUT GOING INTO THE MERITS. ORDER PRONOUNCED IN OPEN COURT ON THIS DAY OF 2 ND JUNE, 2015. SD/- SD/- (N.K. SAINI) (GEORGE GEORGE K.) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 2 ND DAY OF JUNE, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XIX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.