ITO, Faridabad V. M/s. Bhim Singh, Faridabad

ITA 2135/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90934 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-04-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 29-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: V S AGARWAL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO.2135/DEL/2011 (ASSESSMENT YEAR: 2000 - 01) ITO, WARD - II (4), FARIDABAD VS. BHIM SINGH, HOUSE NO.1568, SECTOR - 28, FARIDABAD PAN:BQZPS1928M (APPELLANT) (RESPONDENT) APPELLANT BY : SH. B.R.R. KUMAR, SR. D R RESPONDENT BY : SHRI V.S. AGARWAL, ADV. DATE OF HEARING 21.04.2015 DATE OF PRONOUNCEMENT 2 2 .04.2015 ORDER PER A. T. VARKEY , JUDICIAL MEMBER THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 28.01.2011 OF CIT(A) , FARIDABAD FOR THE ASSTT YEAR 200 0 - 0 1 . 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTMENT READ AS UNDER : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED ON FACTS AND N LAW IN QUASHING THE AGREEMENT DESPITE THE SPECIFIC SAVER PROVIDED UNDER THE ACT BY WAY OF SECTION 292 - B BECAUSE SECTION 292 - B OF THE I NCOME TAX ACT, 1961 PROVIDES THAT IF CERTAIN PROCEDURE AT THE TIME OF SERVICE OF NOTICE REMAINED TO BE FOLLOWED AS THE NOTICE WAS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH THE INTENT AND PURPOSE OF THE ACT, SUCH ASSESSMENT SHOULD NOT HAVE TO BE INVALID OR QUASHED ON THAT GROUND. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN QUASHING THE ASSESSMENT EVEN THOUGH THE DEFECTS IN SERVICE OF NOTICE IS A IRREGULARITY CURABLE U/292 OF THE INCOME TAX ACT, 1961. 3. DURING THE COURSE OF HEARING, LD. COUNS EL FOR THE ASSESSEE AT THE VERY OUTSET STATED 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 PAGE 2 OF 4 CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONTAINED IN SECTION 268A OF THE INCOME TAX ACT 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). 4. AS PER THE LD. COUNSEL THE COMPUTA TION OF THE DISPUTED TAX AS PER THE AO IS AS FOLLOWS: - BHIM SINGH DETAILS OF PAYMENTS RECEIVED DATE FIN YEAR ASS. YEAR APPROPRIATE INCOME HEAD AMOUNT RATE OF TAX TAX 13.02.2000 1999 - 2000 2000 - 01 LONG TERM CAPITAL GAIN 15,93,381/ - 276069 SPECIAL @ AT REGULAR 3,18,676/ - 56821 375497 37549.7 413047 175272 237775 INTT ON ACC RUAL BASIS FOR THE ASSESSMENT YEAR 2000 - 01 EVEN CONFIRMED BY HONBLE CIT APPL AT PAGE 17 - 18 OF THE ORDERS 1869450 ADD SURCH TDS NET DUE 5. A PERUSAL OF THE CHART SHOWS THAT IN ANY WAY THE NET TAX CHARGEABLE AS PER THE LD CIT(A)S ORDER I.E. THE NET TAX EFFECT IS RS.2,71,957/ - WHICH IS LESS THAN RS. 3 LAKHS ONLY AND SO THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL AND PRAYED THAT THE INSTA NT CASE MAY BE DISMISSED. 6 . ON THE OTHER HAND, THE LD. DR ALTHOUGH 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/ - . 7 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES A ND THE MATERIAL 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, I SSUE 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 AUTHORITY FROM FILING AN PAGE 3 OF 4 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 APPEAL 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 CO NTEND THAT 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 ORDER S, INSTRUCTIONS 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 BOAR D FIXING 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. 8 . IT IS NOT IN DISPUTE THAT THE BOARDS INS TRUCTION 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 TH AN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 9 . 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. 10 . KE EPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 2014 DATED 10TH 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 VI EW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS OF THE HONBLE 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). PAGE 4 OF 4 11 . 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. 179/1991 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. 12 . THUS, FROM THE RATIO LAID DOWN BY THE HONBL E DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APP LICABLE FOR PENDING CASES ALSO. THEREFORE, BY 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 10TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING TH E APPEAL BEFORE THE ITAT IS RS. 4,00,000/ - . 13 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 14 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 2 . 04.2015 . - S D / - - S D / - ( N.K.SAINI ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 2 / 04 / 2015 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI