ITO, New Delhi V. M/s Nishit Fincap Pvt. Ltd., New Delhi

ITA 2207/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3715 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 02-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 25-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KISHORE
• Assessee Lawyers: V MOHAN
• Keywords: Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH F DELHI ] BEFORE SHRI RAJPAL YADAV, JM AND SHRI K. D. RAN JAN, AM I. T. APPEAL NO. 2207 (DEL) OF 2009 ASSESSMENT YEAR : 2004-05. THE INCOME-TAX OFFICER, M/S. NISHIT FINCAP PVT. LTD., W A R D : 13 (3), VS. B58, GUJRANWALA TOWN I, N E W D E L H I. N E W D E L H I. P A N / G I R NO. AAA CN 3687 M. ( APPELLANT ) ( RES PONDENT ) ASSESSEE BY : SHRI V. MOHAN, C. A.; DEPARTMENT BY : SHRI B. KISHORE, SR. D. R.; O R D E R. PER K. D. RANJAN, AM : THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 200 4-05 ARISES OUT OF ORDER OF THE LD. CIT (APPEALS)XVI, NEW DELHI. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT (APPEALS) HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS.8,00,000/- ON ACCOUNT OF SHARE APPLICATION MONEY WHICH WAS HELD TO BE UNE XPLAINED UNDER SECTION 68 OF THE I. T. ACT; 2. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, LD. CIT (APPEALS) HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS.4,000/- ON ACCOUNT OF COMMISSION PAID TO OBTAIN THE ACCOMMODATION ENTRY I N THE FORM OF SHARE APPLICATION MONEY OF RS.8,00,000/-. 2 I. T. APPEAL NO. 2207 (DEL) OF 2009 3. AT THE OUTSET, THE LD. AR OF THE ASSESSEE SUBMIT TED THAT THE TAX EFFECT IN THIS CASE IS LESS THAN RS.3,00,000/- AND, THEREFORE, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF DELHI GOLF CLUB IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA. NO. 128/2008 DATED 3/0 3/2011. ON THE OTHER HAND, THE LD. SR. DR SUBMITTED THAT INSTRUCTION NO. 3 DATED 9 TH FEBRUARY, 2011 IS PROSPECTIVE IN NATURE. HE FURTH ER SUBMITTED THAT THE INSTRUCTIONS APPLY TO THE MONETA RY LIMIT FOR FILING THE APPEAL AND NOT FOR HEARING THE APPEAL. HE PLACED RELIANCE ON THE FULL BENCH DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. VARINDER CONSTRUC TION COMPANY 239 CTR PAGE 1 (P & H) WHEREIN IT HAS BEEN HELD THAT MONETARY LIMITS PRESC RIBED UNDER SECTION 268-A OF THE ACT APPLIES FOR MONETARY LIMIT FOR FILING OF THE APPEAL AND NOT FOR HEARING OF THE APPEAL. 4, WE HAVE HEARD BOTH THE PARTIES. THE DECISION RE LIED UPON BY THE LD. SR. DR COURT IN THE CASE OF CIT VS. VARINDER CONSTRUCTION COMPANY (SUPR A) IS NOT APPLICABLE TO THE ASSESSEE FALLING IN THE JURISDICTION OF HONBLE DELHI HIGH COURT. /- . HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA. NO. 128/2008 DATED 3/03/2011 HAS HELD AS UNDER :- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS.4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN RS.10,00,000/- ARE NOT TO BE ENTERTAINED. THIS COURT IN THE CASE OF CIT, DELHI-III VS. M/S. P. S. JAIN & CO. BEING ITA. NO. 179/1991 DECIDED ON 02 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR W OULD ALSO APPLY TO THE PENDING CASES. 5. IN VIEW OF DECISION OF HONBLE DELHI HIGH COU RT, IT IS CLEAR THAT INSTRUCTION NO. 3/2011 DATED 9/02/2011 WILL ALSO APPLY TO ALL PENDING APPE ALS. THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. ( SUPRA) IS BINDING ON US IN THE CASE OF ASSESSEES CASE. THEREFORE THE RELIANCE PLACED BY L D. SR. DR ON THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT (FB) IN THE CASE OF CIT VS. VARI NDER CONSTRUCTION CO.(SUPRA) IS OF NO HELP TO REVENUE. WE, THEREFORE, DISMISS THE APPEALS FIL ED BY THE REVENUE AS NOT MAINTAINABLE. 3 I. T. APPEAL NO. 2207 (DEL) OF 2009 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 10 TH JUNE, 2011. SD/- SD/- [ RAJPAL YADAV ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 10 TH JUNE, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.