ITO, Rohtak V. M/s. Dayanand Contractor, Haryana

ITA 178/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7432 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 09-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.O.P.KANT, ACCOUNTANT MEMBER I.T.A .NO.-178/DEL /2014 (ASSESSMENT YEAR-2006- 07) ITO, WARD-3, ROHTAK (APPELLANT) VS DAYANAND CONTRACTOR, VPO KHARENTI, DISTT. ROHTAK, HARYANA PAN-AADFD4239K (RESPONDENT) APPELLANT BY MS. RAKHI VIMAL, SR.DR RESPONDENT BY SH. PIYUSH KUMAR KAMAL, ADV ORDER PER DIVA SINGH, JM BY THE PRESENT APPEAL THE REVENUE ASSAILS THE CORRE CTNESS OF THE ORDER DATED 12.11.2013 OF CIT(A), ROHTAK PERTAINING TO 20 06-07 ASSESSMENT YEAR ON THE GROUND OF DELETION OF RS.20,72,274/- WHICH ADDI TION WAS MADE ON ACCOUNT OF LOW G.P. 2. THE LD. AR, MR. PIYUSH KUMAR KAMAL INVITING ATTE NTION TO THE LATEST CIRCULAR NO.21/2015 DATED 10 TH DECEMBER, 2015 OF CBDT SUBMITTED THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE AS THE TAX EFFECT IS LESS THAN RS.10 LACS. 3. MS. RAKHI VIMAL, SR. DR CONSIDERING THE GROUNDS AND THE ADDITIONS AT STAKE FOR THE REVENUE FAIRLY SUBMITTED THAT IN TERM S OF THE CBDT CIRCULAR NO.21/2015 DATED 10 TH DECEMBER 2015, THE DEPARTMENTAL APPEAL MAY BE TREA TED AS NOT PRESSED. 4. IT MAY NOT BE OUT OF PLACE TO REFER TO SECTION 2 68A OF THE INCOME-TAX ACT, 1961 WHICH HAS BEEN INSERTED BY THE FINANCE ACT, 20 08 WITH RETROSPECTIVE EFFECT FROM 01.04.1999 WHICH MANDATES THE CBDT TO ISSUE NO TIFICATIONS AND CIRCULARS AS CIRCULAR NO.21/2015 DATED 10TH DECEMBER, 2015 OF CBDT, WHICH HAS REVISED THE MONETARY LIMIT FOR FILING OF THE DEPARTMENTAL A PPEAL TO THE ITAT AT RS.10 LAC DATE OF HEARING 05.01.2016 DATE OF PRONOUNCEMENT 06.01.2016 I.T.A .NO.-178/DEL/2014 PAGE 2 OF 3 HAS BEEN ISSUED UNDER THE SAID PROVISIONS BY THE CB DT. THE RELEVANT PROVISION READS 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 PRECLUDE SUCH AUTHORI TY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN T HE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEA R; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER A SSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE OR DERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), IT SHALL N OT 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 ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENC E IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH A PPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIO NS 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 FIXING MONETARY LIMITS FOR FILING AN APPEAL O R APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB-SECTI ON (1) AND THE PROVISIONS OF SUB-SECTIONS (2), (3) AND (4) SHALL A PPLY ACCORDINGLY.] 5. RELEVANT EXTRACTS (PARAS 1 TO 4) FROM THE AFORES AID CBDT CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 IS ALSO REPRODUCED HEREUNDER FOR READY REFERENCE: SUBJECT : REVISION OF MONETARY LIMITS FOR FI LING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL A ND HIGH COURTS AND SLP BEFORE SUPREME COURT MEASURES FOR REDUCING L ITIGATION REG. REFERENCE IS INVITED TO BOARDS INSTRUCTION NO 5/20 14 DATED 10.07.2014 WHEREIN MONETARY LIMITS AND OTHER CONDITIONS FOR FI LING DEPARTMENTAL APPEALS (IN INCOME-TAX MATTERS) BEFORE APPELLATE TR IBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT WERE SPECIFIED. 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MER ITS BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED B ELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HE REUNDER: S. NO APPEALS IN INCOME-TAX MATTER MONETARY LIMIT ( IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 2 BEFORE HIGH COURT 20,00,000/- 3 BEFORE SUPREME COURT 25,00,000/- I.T.A .NO.-178/DEL/2014 PAGE 3 OF 3 IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCR IBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE F ILED (HEREINAFTER REFERRED TO AS DISPUTED ISSUES). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INT EREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 6. WE HAVE SEEN THAT THE MONETARY LIMITS HAVE BEEN MADE APPLICABLE RETROSPECTIVELY BY THE CBDT IN THE SAID CIRCULAR AS WOULD BE EVIDENT FROM THE FOLLOWING EXTRACT:- 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIB UNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE G OVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 7. IN VIEW OF THE ABOVE WHERE THE TAX EFFECT IS ADM ITTEDLY BELOW RS.10 LAC THE APPEAL FILED IS DISMISSED AS THE SAID CIRCULAR IS B INDING ON THE REVENUE. RELYING ON THE AFORESAID CIRCULAR THE DEPARTMENTAL APPEAL I N THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06 TH JANUARY, 2016. SD/- SD/- (O.P.KANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 06/01/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSIST ANT REGISTRAR ITAT NEW DELHI