ITO, UDAIPUR V. Shri Suresh Kumar Suhalka, UDAIPUR

ITA 225/JODH/2014

• Counselvise Citation: 22523314 RSA 2014
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 10-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA , JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 2 2 5 / J ODH / 20 1 4 ASSESSMENT YEAR: 2 00 9 - 1 0 I.T .O., VS. SHRI SURESH KUMAR SUHALKHA , WARD 1 (4) , 7 - RK PURAM KE PASS, UDAIPUR BEHIND SMT. GIIRJA VYAS PETROL P UMP , TITARADI, UDAIPUR. PAN NO. BUAPS 8870 D (APPELLANT) (RESPONDENT) A SSESSEE B Y : SHRI U.C. JAIN & SHRI RAJENDRA JAIN. DEPARTMENT B Y : SHRI N.A. JOSHI D.R. DATE OF H EARING : 08 . 0 8 .201 4 DATE OF PRONOUNCEMENT : 08 . 08 . 201 4 ORDER PER N.K. SAINI , A .M. TH IS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT (A) , UDAI PUR , DATED 30 . 0 1 .20 1 4 F OR A.Y 200 9 - 1 0 . 2 2. DURING THE COURSE OF HEARING , LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL AS THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 3,00,000/ - . THE LD. D.R., ALTHOUGH S UPPORTED THE ORDER OF THE ASSESSING OFFICER , BUT COULD NOT CONTROVERT THE ABOVE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT TAX EFFECT IN THIS APPEAL IS LESS THAN RS.3,00,000/ - . 3 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND TH E MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETRO SPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, IN STRUCTIONS 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. 3 (2) WHE RE, 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 SU CH 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 YEAR; OR ( B ) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APP EAL 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 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 ORDERS, INSTRUC TIONS 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 BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED 4 UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ] 4 . IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCT ION 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 THAN TH E AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 5 . IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.3 OF 2011 DATED 09.02.2011, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 3,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 6 . KEEPIN G IN VIEW THE CBDT INSTRUCTION NO.3 OF 2011 DATED 09.02.2011 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 5 THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE A RE 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 CONSTRUCTION CO. (2011) 331 ITR 449 (P&H)(FB) 7 . SI MILARLY , THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. 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 V. M/S. P.S. JAIN & CO. HELD THAT SU CH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 8 . FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW T HE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, WE ARE OF THE CONSIDERED VIEW 6 THAT INSTRUCTION NO.3/11 DATED 09.02.2011 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. 3.00 LAKH S. 9 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 1 0 . IN THE RESULT, THE APPEAL OF THE REVENUE STAND S DISMISSED . ORDER PRON OUNCED IN THE COURT ON 08 .0 8 . 201 4 . SD/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 08 TH AUGUST , 2014 VR / - COPY TO: THE APPELLANT THE RESPONDENT THE CIT THE CIT(A) THE DR BY ORDER SR. PRIVATE SECRETARY. ITAT, JODHPUR