ITO, New Delhi V. Sh. Sunil Kumar, Delhi

ITA 1437/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8276 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 23-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Keywords: Capital asset; Retrospective amendment; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SH. I.C. SUDHIR, JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 1437 /DEL/ 2014 ASSESSMENT YEAR: 2009 - 10 INCOME TAX OFFICER, WARD - 21(3), NEW DELHI VS. SH. SUNIL KUMAR, G - 73/5, BEHIND DESU OFFICER, VISHWAKARMA ROAD, NARELA, DELHI GIR/PAN : AIBPK2190E (APPELLANT) (RESPONDENT) APPELLANT BY SMT. ANIMA BARNWAL, SR.DR RESPONDENT BY SH. R.S. SINGHVI, ADV. DATE OF HEARING 23.03.2016 DATE OF PRONOUNCEMENT 08.04.2016 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DATED 23.12.2013 IN RELATION TO ASSESSMENT YEAR 2009 - 10, RAISING THE FOLLOWING GROUNDS OF APPEAL: I. THAT LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN DELETING THE ADDITION OF RS. 21,71,000/ - MADE BY THE ASSESSING OFFICER U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT, BY MERELY ACCEPTI NG THE ASSESSEE S EXPLANATION THAT THE SAME WERE ADVANCES RECEIVED IN CASH WHILE NOT APPRECIATING THE FACT THAT THE ASSESSEE DID NOT OWN ANY CAPITAL ASSET ON THE DATE OF SALE. 2 ITA NO. 1437/DEL/2014 AY: 2009 - 10 II. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN FACTS AND CIRCUMSTA NCES OF THE CASE IN DELETING THE ADDITION OF RS. 21,70,000/ - MADE BY THE A.O. U/S 68 OF THE I.T. ACT ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT, WHEN THE EXPLANATION OFFERED BY THE ASSESSEE WAS NOT SUBSTANTIATED WITH EVIDENCE. III. THE APPELLANT CRAVES LEAVE TO AM END OR ALTER ALL OR ANY OF THE AFORESAI D GROUNDS OF APPEAL AND AMEND, ALTER OR ADD ANY OTHER GROUND OF APPEAL. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD . IT IS NOTICED THAT THE CBDT HAS ISSUED CIRCULAR NO. 21 OF 2015 DA TED 10.12.2015 WITH RETROSPECTIVE EFFECT, REVISING THE MONETARY LIMIT TO RS.10,00,000/ - FOR NOT FILING APPEALS BEFORE THE TRIBUNAL. THE LD. SR. DEPARTMENTAL REPRESENTATIVE, ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT TH E FACT THAT TAX EFFECT INVOLVED IN THE APPEAL IS LESS THAN RS.10,00,000/ - . 3. FROM PARA 10 OF THE ABOVE CIRCULAR, IT IS PALPABLE THAT THE INSTRUCTION IS APPLICABLE TO THE PENDING APPEALS ALSO WITH RETROSPECTIVE EFFECT AND THERE IS A CLEAR - CUT DIRECTION TO THE DEPARTMENT TO WITHDRAW OR NOT PRESS SUCH APPEALS FILED BEFORE THE ITAT, WHEREIN TAX EFFECT IS LESS THAN RS.10,00,000/ - . GOING BY THE PRESCRIPTION OF THE AFORE - NOTED CIRCULAR, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HAVE EITHER NOT FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL OR WITHDRAWN THE SAME AS THE TAX EFFECT IN THIS APPEAL IS AD MITTEDLY LESS THAN THE PRESCRIBED LIMIT I.E. RS. 10,00,000/ - FOR NOT FILING THE APPEAL. ACCORDINGLY , WE DISMISS THE INSTANT APPEAL W ITHOUT 3 ITA NO. 1437/DEL/2014 AY: 2009 - 10 GOING INTO MERITS OF THE CASE. HOWEVER, THE DEPARTMENT IS AT LIBERTY TO FILE THE MISCELLANEOUS APPLICATION, IF THE TA X EFFECT IS MORE THAN THE PRESCRIBED LIMITED OF RS. 10 LACS OR OTHERWISE. 4. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 8 T H APRIL , 2016 . S D / - S D / - ( I.C. SUDHIR ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 8 T H APRIL , 2016 . RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI