Addl. CIT, Muzaffarnagar V. Shri Khawaja Mohammad Khushal, Muzaffarnagar

ITA 1642/DEL/2011

• Counselvise Citation: 164220114 RSA 2011
• Duration Of Justice: 3 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 16-03-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 05-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Keywords: Gift; Retrospective amendment; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO . 16 42 /DEL/201 1 A.Y. 2003 - 04 ADDL. COMMISSIONER OF INCOME TAX VS. SHRI KHWAJA MOHAMMAD RANGE - 2, KHUSHAL, VILLAGE, MUZAFFARNAGAR BIHARGARH, POST MORNA DISTT. MUZAFFARNAGAR PAN: ALJPK0883H (APPELLANT) (RESPONDENT) APPELLANT BY : S HRI B.R.R. KUMAR, SR. DR RESPONDENT BY : NONE DATE OF HEARING : 1 6 - 0 3 - 2 015 DATE OF ORDER : 16 - 0 3 - 2015 ORDER PER H.S. SIDHU, J.M. THE REVENUE HAS FILED THIS APPEAL AGAINST THE ORDER DATED 20 / 1 /201 1 PASSED BY THE L D. CIT(A) , MUZZAFFARNAGAR FOR THE ASSESSMENT YEAR 2003 - 04. 2. THE GROUNDS RAISED BY THE DEPARTMENT REA D AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 9,64,000/ - MADE BY THE AO UNDER SECTION 68 OF THE I.T. ACT, 1961 AS UNEXPLAINED GIFTS CREDITED IN THE BOOKS OF ACCOUNT IG NORING THE DECISION OF HON BLE APEX COURT IN THE CASE OF SUMATI DAYAL VS. CIT (214 ITR 801) AND THAT THE HON BLE HIGH COURT OF CHATTISGARH IN THE CASE OF KUSHAL PRASAD MANHAR VS. CIT [2010] 236 CIT 192), WITHOUT APPRECIATING THE FULL FACTS OF THE CASE. 2 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN LAW IN DELETING THE ADDITION OF ITA NO. 16 42 / D EL /20 1 1 2 RS. 9,64,000/ - MADE BY THE AO WITHOUT APPRECIATING THE FULL FACTS OF THE CASE AND BY IGNORING THE JUDICIAL PRONOUNCEMENT REPORTED IN THE FOLLOWING CASES: - I) SHREE LEKHA BANARJEE VS. CIT 49 ITR 112 (SC) II) RAM LAL AGARWAL VS. CIT 280 ITR 547 (ALLD.) III) ITO VS. RAI CHAND KOTHARI (HUF) 39 TTJ (TRIBUNAL) IV) SHAMKER INDS. VS. CIT, 14 ITR 689 (CAL.) V) PRAKASH TEXTILES AGENCY VS. CIT, 121 ITR 89 VI) C. KANT & CO. VS. CIT, 126 ITR 63 (CAL.) 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW BY TREATING THE INCOME OF RS. 20,000/ - AS AGRICULTURAL INCOME, WHICH WAS TAKEN BY THE AO AS INCOME FROM OTHER SOURCES AS THE ASSESSEE FAILED TO PROV E THAT ANY AGRICULTURAL OPERATION IS BEING CARRIED OUT. 4. THE ORDER OF LD. CIT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THIS CASE WAS EARLIER FIXED FOR 22.10.2014, BUT NONE APPEARED AT THE TIME OF HEARING AND THE SAME WAS ADJOURNED FOR 28.1.2015. AGAIN ON 28.1.2015 HEARING ADJOURNED FOR 16.3.2015 ON THE REQUEST OF THE ASSESSEE S COUNSEL. FOR TODAY I.E. 16.3.23015 NOTICE WAS SENT TO THE ASSESSEE ON THE ADDRESS GIVEN BY IT, HOWEVER, AGAIN NONE APPEARED ON BEHALF OF THE AS SESSEE NOR ANY REQUEST FOR ADJOURNMENT IS FILED. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT NO USEFUL PURPOSE WOULD BE SERVED TO ADJOURN THE CASE AGAIN AND AGAIN. THEREFORE, WE ARE DECIDING THE APPEAL, EXPARTE QUA ASSESSEE. 4 . AT TH E THRESHOLD WE FIND THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 4,00,000/ - , THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONTAINED IN THE SECTION 268A OF THE INCOME T AX ACT, 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). ITA NO. 16 42 / D EL /20 1 1 3 5 . L D. DR SUPPORTED THE ORDER OF AO, BUT COULD NOT CONTROVERT THIS FACT THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 4 ,00,000/ - . 6 . AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND THE MATERIA L ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/1999. THE RELEVANT 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 MONETARY 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 SUB - 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 PRECLUD E SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF (A) 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 A PPEAL 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 TH AT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE 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, INST RUCTIONS 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. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIX ING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ITA NO. 16 42 / D EL /20 1 1 4 7 . IT IS NOT IN DISPUTE THAT T HE BOARD S INSTRUCT ION OR DIRECTIONS ISSUED TO THE OTHER INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN TH E AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 8 . IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO. 5/2014 DATED 10 TH JULY, 2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 4,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 9 . KEEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 2014 DATED 10 TH JULY, 2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961 , WE ARE OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, W E ARE FORTIFIED BY THE FOLLOWING DECISIONS OF THE HON BLE PUNJAB & HARYANA HIGH COURT: 1. CIT VS. OSCAR LABORATORIES P. LTD. (2010) 324 ITR 115 (P&H); 2. CIT VS. ABINASH GUPTA (2010) 327 ITR 619 (P&H); 3. CIT VS. VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H) (FB). 10 . SIMILARLY, THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. 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 VS. M/S P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 1 1 . THUS, FROM THE RATIO LAID DOWN BY THE HON BL DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, B Y KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASE, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO. 5 OF 2014 DATED 10 TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE ITA NO. 16 42 / D EL /20 1 1 5 PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4,00,000/ - . 1 2 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 1 3 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN T HE OPEN COURT ON 16 / 3 /201 5. SD/ - SD/ - ( T.S. KAPOOR ) ( H.S. SIDHU ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 6 / 3 /201 5 * SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR , ITAT, NEW DELHI ITA NO. 16 42 / D EL /20 1 1 6