ITO Ward-18 (2), V. Udit Capfin (P) Ltd,

ITA 1825/DEL/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3758 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 07-06-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 09-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANSHUMAN PATNAIK SENIOR
• Keywords: Tax effect
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H, NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.1825/DEL/2008 (ASSESSMENT YEAR : 1999-2000) ITO, WARD 18 (2), VS. M/S. UDIT CAP FIN P. LTD., NEW DELHI. 8/3, JAIDEV PARK, NEW DELHI. (PAN : AAACU1515D) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI ANSHUMAN PATNAIK, SENIOR DR O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT (APPEALS)-XXI, NEW DELHI DATED 27.2.2008 FOR THE AS SESSMENT YEAR 1999- 2000. 2. AT THE OUTSET OF HEARING, IT WAS POINTED OUT THA T THE ADDITION IS ONLY OF RS.5 LACS AND AS PER THE DEMAND NOTICE DATED 8.12.2 006 THE GROSS TAX WAS RS.1,77,191/-. THE RATE OF TAX DURING THE RELEVANT ASSESSMENT YEAR FOR PRIVATE LIMITED COMPANY WAS. THE TOTAL DEMAND RAIS ED BY THE NOTICE WAS RS.3,74,809/-. THIS AMOUNT INCLUDES INTEREST CHARG ED OF RS.1,99,804/- U/S 234B OF THE INCOME-TAX ACT. IN VIEW OF THE INSTRU CTION NO.5 OF 2007 ISSUED BY THE CBDT ON 16.7.2007 CLARIFYING THAT THE EXPRES SION TAX EFFECT USED IN ITA NO.1825/DEL/2008 2 THE INSTRUCTION DATED 24.10.2005 MEANS THE TAX ONLY I.E. TAX EXCLUDING INTEREST. 3. LEARNED DR WAS ALSO HAVING NO CONTRARY VIEW IN T HIS REGARD. 4. AFTER HEARING REVENUE AND PERUSAL OF THE RELEVAN T MATERIAL ON RECORD, WE OBSERVE THAT EVEN THOUGH IT WAS CLARIFIED BY THE CBDT AS PER INSTRUCTION NO.6 ISSUED ON 17.7.2003 THAT THE WORDS MONETARY L IMIT AND TAX EFFECT USED IN THE RELEVANT INSTRUCTIONS ISSUED IN THE YEA R 2000 WERE TO BE READ AS REVENUE EFFECT WHICH DENOTES THE AMOUNT OF TAX, I NTEREST, PENALTY, FINE OR ANY OTHER SUM INVOLVED, THE BOARD HAS SUBSEQUENTLY COME OUT WITH A FURTHER CLARIFICATION AS PER INSTRUCTION NO.5 OF 2007 ISSUE D ON 16.7.2007 CLARIFYING THAT THE TAX EFFECT SPECIFIED IN PARAGRAPH NO.2 O F ITS INSTRUCTION DATED 24.10.2005 MEANS THE TAX ONLY I.E. TAX EXCLUDING IN TEREST ETC. SINCE THE INSTRUCTION NO.5 OF 2007 DATED 16.7.2007 HAS BEEN I SSUED LATER IN POINT OF TIME AND THE SAME HAS ALSO BEEN ISSUED DIRECTLY IN THE CONTEXT OF ITS INSTRUCTION DATED 24.10.2005 WHICH IS APPLICABLE IN THE PRESENT CASES AS HELD, INTER ALIA , BY RAJKOT BENCH OF ITAT IN THE CASE OF RAJU ENGIN EERS LTD. (SUPRA), WE ARE OF THE VIEW THAT THE TAX EFFECT ENV ISAGED IN THE CBDT INSTRUCTION DATED 24.10.2005 HAS TO BE SEEN AS PER THE CLARIFICATION ISSUED VIDE AN INSTRUCTION DATED 16.7.2007 BY TAKING INTO CONSIDERATION ONLY THE TAX AMOUNT INVOLVED EXCLUDING INTEREST ETC. 5. IN THE CASE OF ACIT VS. SHRI GULSHAN RAI CHANANA DECIDED RECENTLY VIDE ITS ORDER DATED 23 RD FEBRUARY, 2007 IN ITA NO.4301/DEL/2004, IT HAS BEEN HELD BY DELHI F BENCH OF ITAT RELYING ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRADEEP KUM AR GUPTA 207 CTR 115 AND THAT OF AMRITSAR SPECIAL BENCH OF ITAT IN T HE CASE OF BIR ENGINEERING WORKS 94 ITD 164 THAT THE TAX EFFECT INVOLVED IN THE APPEAL ITA NO.1825/DEL/2008 3 FILED BY THE REVENUE BEING LESS THAN THE MONETARY L IMIT PRESCRIBED BY THE CBDT INSTRUCTION FOR FILING THE APPEAL BEFORE THE T RIBUNAL, THE SAME WAS NOT MAINTAINABLE AND THUS WAS LIABLE TO BE DISMISSED. 6. AS ALREADY NOTED, THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL DOES NOT EXCEED THE MONETARY LIMIT OF RS.2 LAKHS PRESCRI BED IN THE CBDT INSTRUCTION DATED 24.10.2005 FOR FILING APPEAL BEFO RE THE TRIBUNAL AND THIS BEING THE UNDISPUTED POSITION, WE HOLD, RESPECTFULL Y FOLLOWING THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRADEEP KUMAR GUPTA (SUPRA) AND THAT OF AMRITSAR SPECIAL BENCH OF ITAT IN THE CASE OF BIR ENGINEERING WORKS (SUPRA), THAT THIS APPEAL IS NOT MAINTAINABLE HAVING BEEN FILED IN CONTRAVENTION OF THE SAID BINDING INSTRUCT ION. THE SAME IS, THEREFORE, DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE 7 TH DAY OF JUNE 2009 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (C.L. SETHI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : THE 7 TH DAY OF JUNE, 2009 TS COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT 4. CIT(A)-XXI, NEW DELHI. 5. DR, ITAT. ASSTT.REGISTRAR ITAT, NEW DELHI.