ACIT, Meerut V. Sh. G.L. Khera, New Delhi

ITA 2314/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3523 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 06-07-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 17-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK GA NDHI
• Assessee Lawyers: H L DIHANA
• Keywords: Tax effect
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A NO. 2314/DEL/10 ASSTT. YEAR 2000-2001 ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, MEERUT. VS. SHRI G.L. KHERA, B-1/597B, JANAK PURI, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: ASHOK GANDHI RESPONDENT BY: SHRI H.L. DIHANA, CIT DR ORDER PER DIVA SINGH, JM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 24.2.2010 OF CIT MEERUT PERTAINING TO 2000-01 ASSTT. YEAR WHEREI N IT HAS BEEN AGITATED BY THE DEPARTMENT THAT IN CONTRAVENTION OF RULE 46A(1) OF THE I.T. RULES AN ADDITION OF RS. 2,85,000/- MADE BY THE AO HAS BEEN DELETED. IT WAS SUBMITTED BY THE LD. AR THAT ALTHOUGH THE AMOUNT MENTIONED IN GROUND NO. 1 IS RS . 7 LACS IN FACT ON A PERUSAL OF THE IMPUGNED ORDER FROM PAGES 1 5 THE SOLE ISSUE AGITATED IS THE DELETION OF THE ADDITION OF RS. 2,85,000/- WHICH FACT IS BORNE OUT FROM PAGE 4 OF THE ASSTT. ORDER WHEREIN THE ADDITION MADE IN THE TUNE OF RS.2,85,00 0/-. 2. LD. AR MR. ASHOK GANDHI PLACED BEFORE THE BENCH COPY OF THE ORDER OF THE COORDINATE BENCH IN THE CASE OF THE ASSESSEE FOR 20 01-02 ASSTT. YEAR WHEREIN ON IDENTICAL GROUNDS THE DEPARTMENTAL APPEAL WAS DISMI SSED. ITA NO. 2314/DEL/10 ASSTT. YEAR 2000-2001 2 3. IN THE LIGHT OF THE ABOVE FACTS, THE DEPARTMENT WAS REQUIRED TO ADDRESS THE BENCH ON THE MAINTAINABILITY OF THE PRESENT APPEAL ON THE ISSUE OF TAX EFFECT WHICH WAS ADMITTEDLY LESS THAN RS. 1 LAC. 4. THE LEARNED DR IN REGARD TO THE TAX EFFECT INVOL VED STATED THAT THE SAME IS MUCH BELOW RS. 3 LAKHS. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT IN TERMS OF THE INSTRUCTION NO. 3/2 011 OF 9 TH FEBRUARY, 2011 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) WHEREIN TH E MONETARY LIMIT FOR FILING THE APPEAL IN THE INCOME-TAX MATTES BEFORE THE TRIBUNAL HAS BEEN FIXED AT RS. 3,00,000/- , THE SAID INSTRUCTION HAS BEEN CONSIDERED IN VARIO US ORDERS OF THE TRIBUNAL BY CO- ORDINATE BENCHES. REFERENCE MAY BE MADE TO SOME OF THESE WHICH ARE CONSISTENTLY BEING FOLLOWED BY THE DELHI BENCHES. NAMELY (1) ORDER OF ITAT, MUMBAI BENCH A MUMBAI IN THE C ASE OF ITO VS. SHRI ASHOK G. DHANDHARIAI IN ITA NO. 2460/MUM./2010, DAT ED 28 TH FEBURARY, 2011, FOR THE ASSESSMENT YEAR 2005-06 ; & (2) ORDER OF ITAT, DELHI BENCH F NEW DELHI IN THE CASE OF ITO VS. M/S. PRS SECURITIES PVT. LTD. IN ITA NO. 4447/2010, DATED 25 .03.2011 FOR THE ASSESSMENT YEAR 2001-02. (3) JUDGMENT OF HIGH COURT OF DELHI IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008, DATED 3 RD MARCH, 2011. 6. REFERENCE MAY ALSO BE MADE TO THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. (SUPRA) HAS HELD AS UN DER :- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S. 4,65,860/-. AS PER RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS, ARE NOT BE ENTERTAINED. ITA NO. 2314/DEL/10 ASSTT. YEAR 2000-2001 3 THIS COURT IN THE CASE OF COMMISSIONER OF INCOME-T AX III V. M/S. P.S. JAIN AND CO. BEING NO. 179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASE S. 7. IN THE FACTS OF THE PRESENT CASE ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROUNDS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS . 3 LAKH AND AS PER REVISED INSTRUCTION OF THE CBDT NO. 3 DATED 9.2.2011 WHEREI N THE CBDT HAS REVISED THE FILING LIMITS FOR APPEAL FILED BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT AS UNDER :- BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS. 3 LAKHS, APPEALS U/S 260A OF THE IT ACT BEFORE THE HONBLE HIGH COURT : RS. 10 LAKHS AND BEFORE THE HONBLE SUPREME COURT : RS. 2 5 LAKHS 8. SINCE IN THE PRESENT CASE THE ABOVE REVISED INST RUCTION IS FULLY APPLICABLE IN VIEW OF THE JUDGMENT OF THE HONBLE DELHI HIGH COUR T (SUPRA), HENCE IN OUR OPINION THE REVENUES APPEAL IS NOT MAINTAINABLE IN VIEW OF THE SAID CIRCULAR OF THE CBDT,. REFERENCE MAY ALSO BE MADE TO THE DECISION OF HONB LE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. ASHOK KUMAR MANIBHAI P ATEL & CO. (2009) 317 ITR 386 (MP). 9. WE FURTHER FIND THAT IT IS A SETTLED LAW THAT TH E CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATI ON LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISI ONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID DOWN THA T WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUN D BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRAR Y TO THE TERMS OF THE STATUTE. THE APPEAL ITA NO. 2314/DEL/10 ASSTT. YEAR 2000-2001 4 UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTRA RY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO. 3 DATED 9.2.2011. 10. IN VIEW OF THE ABOVE, WE HOLD THAT THE APPEAL F ILED BY THE DEPARTMENT AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A) IS CONTRARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEP ARTMENT IS DISMISSED IN LIMINE. 11. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ITSELF I.E. ON 6 TH JULY, 2011. SD/- SD/- [B.K. HALDAR] [DIVA SINGH] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6.7.2011 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRA R, ITAT