DCIT, Sonepat V. The Madina Co-Op L/c Society, Rohtak

ITA 1640/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3753 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 06-06-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 05-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI
• Keywords: Tax effect
• Section: 260A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I: NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T. A. NO.1640/DEL/2011 ASSESSMENT YEAR : 2007-08 DEPUTY COMMISSIONER OF INCOME-TAX, THE MADINA C-OP . L/C CIRCLE, SONEPAT. VS. SOCIETY, V.P.O. MADIA, DISTT. ROHTAK. PAN: AABAT3967F (APPELLANT) (RES PONDENT) APPELLANT BY: MS. BANITA DEVI, SR. DR. RESPONDENT BY: NONE. O R D E R PER DIVA SINGH, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST T HE ORDER DATED 3 RD FEBRUARY, 2011 OF THE COMMISSIONER OF INCOME-TAX (APPEALS), R OHTAK, PERTAINING TO THE ASSESSMENT YEAR 2007-08. 2. NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. H OWEVER, ON A PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS SEEN THAT THE S AID APPEAL CAN BE DECIDED ON THE BASIS OF TAX EFFECT INVOLVED. IT IS SEEN THAT THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING A LOSS OF RS.6,310/-. THE ASSESSING OFFICER ASSESSED THE TAXABLE INCOME OF THE ASSESSEE U/S 144 AT RS.4,83,770/-. IN APPEAL BEFORE THE CIT(A), THE APPEAL OF THE ASSESSEE WAS ALLOWED AND THE ADDITION WAS DELETED. AGGRIEVED BY THIS REVENU E IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. DR WAS REQUIRED TO ADDRESS THE MAINTAINABIL ITY OF THE PRESENT APPEAL IN TERMS OF INSTRUCTION NO.3 DATED 9.02.2011 OF CBDT. 2 3. THE LEARNED DR, LOOKING AT THE AMOUNT INVOLVED, STATED THAT THE TAX EFFECT IS BELOW RS.3 LAKH. 4. WE HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD . ON A CAREFUL CONSIDERATION OF THE SAME, WE ARE OF THE VIEW THAT THE DEPARTMENTAL APPEAL DESERVES TO BE DISMISSED. IT IS SEEN THAT THE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO.128/2008, DATED 3 RD MARCH, 2011, HAS HELD AS UNDER:- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S.4,65,860/-. AS PER RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASE S WHERE THE TAX EFFECT IS LESS THAN 10 LACS, ARE NOT BE ENTERTAINED. THIS COURT IN THE CASE OF COMMISSIONER OF INCOME-TA X-III V. M/S. P.S. JAIN AND CO. BEING NO.179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASE S. 4.1 IN THE FACTS OF THE PRESENT CASE ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROUNDS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS.3 LAKHS AN D AS PER REVISED INSTRUCTION OF THE CBDT NO.3 DATED 9.2.2011 WHEREIN THE CBDT HAS REVIS ED THE FILING LIMITS FOR APPEAL FILED BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME C OURT AS UNDER:- BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS.3 LA KHS, APPEALS U/S 260A OF THE IT ACT BEFORE THE HONBLE HIGH COURT : RS.10 LAKHS AND BEFORE THE HONBLE SUPREME COURT : RS.25 LAKHS 4.2 SINCE IN THE PRESENT CASE THE ABOVE REVISED INS TRUCTION IS FULLY APPLICABLE IN VIEW OF THE JUDGMENT OF THE HONBLE DELHI HIGH COURT (SU PRA), HENCE IN OUR OPINION THE REVENUES APPEAL IS NOT MAINTAINABLE IN VIEW OF THE SAID CIRCULAR OF THE CBDT. REFERENCE MAY ALSO BE MADE TO THE DECISION OF HONB LE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. ASHOK KUMAR MANIBHAI PATEL & CO . (2009) 317 ITR 386 (MP). 4.3 WE FURTHER FIND THAT IT IS A SETTLED LAW THAT T HE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRME D BY THE APEX COURT IN THE CASE OF 3 COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATION LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISI ONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THAT W HEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUND BY I T AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9.2.2011. 4.4 IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL F ILED BY THE DEPARTMENT AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CONTRARY TO TH E POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPARTMENT IS D ISMISSED IN LIMINE . 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. 6. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N THE DATE OF HEARING ITSELF I.E. ON 8 TH JUNE, 2011. SD/- SD/- (B.C. MEENA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 TH JUNE, 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.