ACIT, New Delhi V. M/s. Gemscab Industries Ltd., New Delhi

ITA 1648/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1301 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-11-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Keywords: Depreciation; Tax effect
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C: NEW DELHI BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTAN T MEMBER ITA NO. 1648/DEL/2012 ASSESSMENT YEAR 2008-09 ACIT, CIRCLE 12(1) VS. M/S. GEMSCAB INDUSTRIES LTD. NEW DELHI. 4 TH FLOOR, PREM SADAN, 11, R AJENDRA PLACE,, N EW DELHI 110 008. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SATPAL SINGH, SR. DR RESPONDENT BY : NONE ORDER PER I.C. SUDHIR, JUDICIAL MEMBER IN THIS APPEAL THE REVENUE HAS QUESTIONED THE ACTION OF THE LD. CIT(A) IN DELETING THE DISALLOWANCE OF RS. 9,15,000/- MADE BY THE AO ON ACCOUNT OF DEPRECIATION ON WIND MILL. 2. LD. DR DID NOT DISPUTE THAT THE TAX EFFECT OF THE ADDITION QUESTIONED IN THE GROUND IS BELOW RS. 3 LACS. HE HOWEVER TRIED TO JUS TIFY THE ASSESSMENT ORDER. 3. IT IS SEEN THAT THE INSTRUCTION NO.3/2011 OF 9 TH FEBRUARY, 2011 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) FIXES THE MONETARY LIMIT IN THE APPEAL IN THE INCOME-TAX MATTERS BEFORE THE TRIBUNAL AT RS .3,00,000/-. IT IS ALSO SEEN THAT QUA THE ABOVE MENTIONED CBDT INSTRUCTION CO-OR DINATE BENCHES CONSISTENTLY FOLLOWING THE JUDGMENT OF THE JURISDICTIONAL HIGH C OURT HAVE BEEN UNANIMOUSLY ITA NO. 1648/DEL/12 2 DISMISSING DEPARTMENTAL APPEALS. REFERENCE MAY BE M ADE TO THE JUDGMENT OF DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA 128/2008 DATED 3 RD MARCH, 2011 WHICH 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 CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS, ARE NOT BE ENTERTA INED. 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 APPL Y TO PENDING CASES. 4. 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 AND AS PER REVISED INSTRUCTION OF THE CBDT NO.3 DATED 9.2.2011 WHEREIN THE CBDT HAS REVISED THE FILING LIMITS FOR APPEAL FILED BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT 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 5. REFERENCE MAY ALSO BE MADE TO THE DECISION OF HO NBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. ASHOK KUMAR MANIB HAI PATEL & CO. (2009) 317 ITR 386 (MP). 6. IDENTICAL VIEW HAS BEEN TAKEN IN THE FOLLOWING O RDERS (1) ORDER OF ITAT, MUMBAI BENCH `A MUMBAI IN THE C ASE OF ITO VS. SHRI ASHOK G. DHANDHARIAI IN ITA NO.2460/MUM./2010, DATED 28 TH FEBRUARY, 2011, FOR THE ASSESSMENT YEAR 2005-06; & (2) ORDER OF ITAT, DELHI BENCH `F NEW DELHI IN THE CASE OF ITO VS. M/S. PRS SECURITIES PVT. LTD. IN ITA NO.4447/2010, DATED 25. 03.2011 FOR THE ASSESSMENT YEAR 2001-02. ITA NO. 1648/DEL/12 3 7. WE FURTHER FIND THAT IT IS A SETTLED LAW THAT TH E CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONF IRMED BY THE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATION LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EA RLIER DECISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THAT WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION T HEN THE REVENUE IS BOUND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VA LID OR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDERATI ON HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUC TION NO.3 DATED 9.2.2011. 8. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL FI LED BY THE DEPARTMENT AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A), IS CO NTRARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY T HE DEPARTMENT IS DISMISSED IN LIMINE . 12. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 0 4.1.2013. SD/- SD/- (B.C. MEENA) ( I .C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 4.1.2013 VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ITA NO. 1648/DEL/12 4 BY ORDER DEPUTY REGISTRAR, ITAT