ITO, Meerut V. Km. Chhavi Agarwal, Meerut

ITA 2225/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81491 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 10-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: BINOD KR GOEL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI BEFORE SHRI G. D. AGARWAL, HONBLE VICE PRESIDENT AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 2225 /DEL/ 2012 (ASSESSMENT YEAR: 2007 - 08 ) ITO, WARD - 1(2), AAYAKAR BHAWAN, BHAINSALI GROUND, DELHI ROAD, MEERUT VS. CHHAVI AGARWAL 101/2, THAPAR NAGAR, MEERUT PAN:AALPA8400B (APPELLANT) (RESPONDENT) APPELLANT BY : NIDHI SRIVASTAVA, ADV. RESPONDENT BY : BINOD KR. GOEL, ADV. O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 24.02.2012 OF THE CIT(A), MEERUT RELEVANT TO THE ASSESSMENT YEAR 2007 - 08 . 2. AT THE OUTSET IT HAS BEEN BROUGHT TO OUR NOTICE BY THE LD AR THAT THE TAX EFFECT OF THE INSTANT CASE IS ONLY RS.2,92,584/ - AND PRODUCED THE COPY OF THE NOTICE OF DEMAND U/S 156 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER THE ACT). 3. FROM A PERUSAL OF THE SAID NOTICE WE OBSERVE THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN THE AMOUNT PRESCRIBED BY THE CBDT WHERE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL. 4 . THE LEARNED D.R. ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER BUT COULD NOT CONTROVERT THE AFORESAID FACT THAT TAX EFFECT IN THIS APPEAL IS LESS THAN RS.3,00,000/ - . 5 . AFTER CONSIDERING THE SUBMISSION OF THE LD. D.R. FOR THE REVENUE AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY T HE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: PAGE NO. 2 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME - TAX AUTHORITIES, FIXING SUCH MONET ARY 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 SU B - 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 APPEAL OR APPLICATION FOR REFERENCE ON THE SAM E 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 CONTEND THAT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED IS SUE 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 ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRCUMSTANCES UND ER 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 OR APPLICATION FOR REFERENCE SHALL B E DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY.] 6 . IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE D EPARTMENT 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 THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 7 . IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.3 OF 2011 DATED 09.02.2011, BY WHICH THE CBDT HAS RE VISED THE MONETARY LIMIT TO RS. 3,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 8 . KEEPING IN VIEW THE CBDT INSTRUCTION NO.3 OF 2011 DATED 09.02.2011 AND ALSO THE PR OVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE PAGE NO. 3 THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT : - 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 3. CIT V VARINDERA CONS TRUCTION CO. (2011) 331 ITR 449 (P&H)(FB) 9 . IN THE INSTANT CASE SINCE THE TAX EFFECT IS ADMITTEDLY ONLY RS 2,92, 584/= AND IN THE LIGHT OF THE CBDT INSTRUCTION, SINCE THE MONETARY TAX LIMIT FOR NOT FILING THE APPEAL B EFORE THE ITAT IS RS. 3.00, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 10 . IN THE RESULT, APPEAL OF THE REVENU E IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 0 6 . 08 .2014. - S D / - - S D / - ( G. D. AGARWAL) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 0 6 / 08 / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI