DCIT, New Delhi V. M/s. Suraj Holding Limited, New Delhi

ITA 1556/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0222 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Next Hearing Date: 01-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 14-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 1556/DEL/2014 (ASSESSMENT YEAR - 2005 - 06) DCIT, CIRCLE - 9(1), NEW DELHI (APPELLANT) VS SURAJ HOLDING LIMITED, A - 92/C, TAIMOOR NAGAR, NEW FRIENDS COLONY, NEW DELHI. PAN - AA ACS3258B (RESPONDENT) APPELLANT BY SH. GAGAN SOOD, SR. DR RESPONDENT BY NONE ORDER BY THE PRESENT APPEAL THE REVENUE ASSAILS THE CORRECTNESS OF THE ORDER DATED 03/12/2013 OF CIT(A) - XII, NEW DELHI PERTAINING TO 2005 - 06 ASSESSMENT YEAR. 2. AT THE TIME OF HEARING, AN ADJOURNMENT PETITION WAS MOVED BY THE ASSESSEE, N O ONE WAS PRESENT IN SU PPORT OF THE SAME . H OWEVER , CONSIDERING THE FACT THAT THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS LESS THAN RS .4 LACS , T HE PETITION SEEKING TIME WAS PASSED OVER GIVING TIME TO THE LD. SR.DR TO VERIFY AND ADDRESS THE TAX INVOLVED. 2.1. IN THE SECOND ROUND WHEN THE APPEAL WAS CALLED OUT THE LD. SR. DR REFERRING TO THE RECORD SUBMITTED THAT THE TOTAL ADDITION MADE BY THE AO IN THE ORDER U/S 143(3) DATED 04.03.2013 WAS ONLY RS.10 LACS. THUS A FTER HEARING THE LD. SR. DR THE PETITION SEEKING TIME WAS REJE CTED AND IT WAS CONSIDERED APPROPRIATE TO DECIDE THE APPEAL ON THE BASIS OF TAX EFFECT . THE LD. SR. DR STATED THAT THOUGH THE TAX EFFECT INVOLVED IS LESS THAN RS.4 LACS HOWEVER RELIANCE WAS DATE OF HEARING 01.07.2015 DATE OF PRONOUNCEMENT 22 .07.2015 2 I.T.A .NO. - 1556/DEL/2014 PLACED ON THE ASSESSMENT ORDER. THE RECORD SHOWS THAT THE PRESENT APPEAL WAS FILED ON 14.03.2014 AND THE LATEST CBDT INSTRUCTION NO. - 5 OF 2014 DATED 10.07.2014 HAS REVISED THE MONETARY LIMIT FOR FILING APPEAL BEFORE THE TRIBUNAL AS RS.4 LACS. CONSIDERING THE JUDICIAL PRECEDENT AVAILAB LE, I FIND THAT THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL. THE SAID POSITION WAS NOT CONTROVERTED BY THE LD. SR. DR ALTHOUGH HE SUPPORTED THE ORDER OF THE A.O. IN THE ABOVE STATED FACTUAL POSITION CONSIDERING 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 AUTHORITIES, FIXING SUCH MON ETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SU B - SECTION (1), AN INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAM E ISSUE IN THE CASE OF 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 FOR REFERENCE HAS BEEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER 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 ACQUIESCED IN THE DECISION ON THE DISPUTED ISS UE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. 3 I.T.A .NO. - 1556/DEL/2014 (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DE EMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY.] 3. IT IS NOT IN DISPUTE THAT THE BOARD S INSTRUCTION OR DIRECTIONS ISSUED TO THE INCOME - TAX AUTHORITIES ARE BINDING ON THESE AUTH ORITIES, THEREFORE, THE PRESENT APPEAL IN VIEW OF THE ABOVE SAID PROVISIONS MENTIONED IN SECTION 268 A OF THE ACT OUGHT NOT TO HAVE BEEN FILED BY THE DEPARTMENT SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 4. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 4,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 5. 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 TAKING 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 449 (P&H)(FB). 6. SIMILARLY THE HON BLE DEL HI HIGH COURT IN THE CASE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER DATED 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 B E APPLICABLE TO PENDING CASES. 4 I.T.A .NO. - 1556/DEL/2014 7. FROM THE RATIO LAID DOWN BY THE HON BLE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, I AM OF THE CONSIDERED VIEW THAT INSTRUCTION NO.5/14 DATED 10.07.2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS R S. 4.00 LAKHS. 8. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, I DISMISS THE APPEAL FILED BY THE REVENUE. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES. 9. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DI SMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 2 N D J ULY 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 2 /07 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT A SSISTANT REGISTRAR ITAT NEW DELHI