DCIT, New Delhi V. Sh. Mahesh Mehta, New Delhi

ITA 2052/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97722 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 26-10-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 07-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Tax effect
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 2052/DEL/2014 ASSESSMENT YEAR: 2006-07 DY. CIT, VS. SHRI MAHESH MEHTA, CC-3, 2042, KATRA TOBACCO, ROOM NO. 355, 3 RD FLOOR, KHARI BAOLI, DELHI - 6 JHANDEWALAN EXTN., NEW DELHI 110 055 ( PAN: AGBPM7320C) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P. DAM KANUNJNA, SR . DR RESPONDENT BY : NONE DATE OF HEARING DATE OF HEARING DATE OF HEARING DATE OF HEARING : : : : 27 2727 27- -- -10 1010 10- -- -2015 2015 2015 2015 DATE OF ORDER DATE OF ORDER DATE OF ORDER DATE OF ORDER : :: : 27 2727 27- -- -10 1010 10- -- -2015 2015 2015 2015 ORDER THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 16/01/2014 OF LD. CIT(A)-I, NEW DELHI. 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTME NT READ AS UNDER: 1. THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE DISALLOWANCE MADE U/S. 80IB OF THE I.T . ACT, 1961 AMOUNTING TO RS. 49,246/-. 2(A) THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT T ENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVES TO ADD, ALTER OA A MEND ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURIGN THE COURSE OF THE HEARING OF THE APPEAL. 3. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE P RESENT APPEAL, I AM OF ITA NO.2052/DEL/2014 (DCIT VS. MAHESH MEHTA) 2 THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, I AM DECIDING TH E PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 4. AT THE THRESHOLD, I NOTE THAT THAT THE TAX EFF ECT IN THIS APPEAL IS LESS THAN RS. 4,00,000/-, THEREFORE, THE DEPARTMENT OUG HT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT A ND THE PROVISIONS CONTAINED IN THE SECTION 268A OF THE INCOME TAX ACT , 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). 5. LD. 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 HEARING THE LD. DR, IT IS NOTICED THAT SEC TION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIV E EFFECT FROM 01/04/1999. THE RELEVANT PROVISIONS CONTAINED IN S ECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSU E ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTH ORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOM E-TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTION S OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORI TY 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 PREC LUDE 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 YEA R; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER AS SESSMENT YEAR; (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO T HE 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 THAT THE INCOME-TAX AUTHORITY HAS ACQUIESCE D IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR AP PLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUC TIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH ITA NO.2052/DEL/2014 (DCIT VS. MAHESH MEHTA) 3 APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NO T FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH H AS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPE AL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED U NDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. 7. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE OTHER INCOME-TAX AUTHORITIES ARE BINDING ON THO SE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL I N VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 8. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTI ON NO. 5/2014 DATED 10 TH JULY, 2014, BY WHICH THE CBDT HAS REVISED THE MONE TARY LIMIT TO RS. 4,00,000/- FOR FILING THE APPEAL BEFORE THE TRI BUNAL. 9. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 20 14 DATED 10 TH JULY, 2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INC OME TAX ACT, 1961, I AM OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FIL ED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, I FORTIFY BY THE FOLLOWING DECISIONS OF THE HONBLE PUNJAB & HARYANA HIGH COUR T: 1. CIT VS. OSCAR LABORATORIES P. LTD. (2010) 324 ITR 1 15 (P&H); 2. CIT VS. ABINASH GUPTA (2010) 327 ITR 619 (P&H); 3. CIT VS. VARINDERA CONSTRUCTION CO. (2011) 331 ITR 4 49 (P&H) (FB). 10. SIMILARLY, THE HONBLE 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. 179/1 991 IN THE CASE OF CIT DELHI-III VS. M/S P.S. JAIN & CO. HELD THAT SUCH CI RCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 11. THUS, FROM THE RATIO LAID DOWN BY THE HONBL DE LHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR ITA NO.2052/DEL/2014 (DCIT VS. MAHESH MEHTA) 4 PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASE, I AM OF THE CONSIDE RED VIEW THAT INSTRUCTION NO. 5 OF 2014 DATED 10 TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS , MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4,00,0 00/-. 12. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, I DISMISS THE APPEAL FILED BY THE REVENUE. 13. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/10/2015. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 27/10/2015 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR