ACIT, Rewari V. M/s. Narnaul Yadav Co- Op Labour & Construction Society Ltd., Haryana

ITA 2360/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97942 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 27-11-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2360/DEL/2012 ASSESSMENT YEAR: 2006-07 ASSISTANT COMMISSIONER OF VS. M/S NARNAUL YADAV CO -OP INCOME TAX, LABOUR & CONSTRUCTION SOCIETY REWARI CIRCLE, AAYAKAR LTD., 280-LIG, BHAWAN, MODEL TOWN, REWARI HOUSING BOARD COLONY, NA RNAUL DISTT. MOHINDERGARH (PAN: AAATN2825G)) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P. DAM KANUNJNA, SR. DR RESPONDENT BY : NONE DATE OF HEARING : 27-11-2015 DATE OF ORDER : 02-12-2015 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 7.3.2012 OF LD. CIT(A), ROHTAK PERTAINING TO ASSESS MENT YEAR 2006-07. 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTME NT READ AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIONS MADE BY THE AO AMOUNTING TO RS. 4,20,960/- ON ACCOUNT OF WITHDRAWI NG THE DEDUCTION U/S. 80P AS THE ASSESSEE HAS NOT RECEIVED PAYMENTS FROM COLLECTIVE DISPOSAL OF LABOUR BY ITS MEMBERS. 3. AT THE TIME OF HEARING, WE NOTE THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/-, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE ITA NO.2360/DEL/2012 2 FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONTAINED IN THE SECTION 268A OF THE INC OME TAX ACT, 1961. 4. LD. DR SUPPORTED THE ORDER OF THE AO. 5. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INV OLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE W OULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THERE FORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEAR ING THE LD. DR AND PERUSING THE RECORDS. 6. AFTER HEARING THE LD. DR AND PERUSING THE MATERI AL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/1999. THE RELE VANT PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSU E ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTH ORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PU RPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFE RENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PROVISIONS OF THIS C HAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTION S OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORI TY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON AN Y ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHA LL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR AP PLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEA R; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER AS SESSMENT 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 S UB-SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PAR TY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSU E BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN AN Y CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUC TIONS OR ITA NO.2360/DEL/2012 3 DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIR CUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENC E WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH H AS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN A PPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE B EEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SEC TIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. 7. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE OTHER INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED T HE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFE CT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING T HE APPEAL. 8. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTI ON NO. 5/2014 DATED 10 TH JULY, 2014, BY WHICH THE CBDT HAS REVISED THE MONE TARY LIMIT TO RS. 4,00,000/- FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 9. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 20 14 DATED 10 TH JULY, 2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NO T HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING S UCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS OF THE HONBLE PUNJAB & HARYANA HIGH COURT: 1. CIT VS. OSCAR LABORATORIES P. LTD. (2010) 324 ITR 1 15 (P&H); 2. CIT VS. ABINASH GUPTA (2010) 327 ITR 619 (P&H); 3. CIT VS. VARINDERA CONSTRUCTION CO. (2011) 331 ITR 4 49 (P&H) (FB). 10. 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. 179/1 991 IN THE CASE OF CIT DELHI-III VS. M/S P.S. JAIN & CO. HELD THAT SUC H CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 11. THUS, FROM THE RATIO LAID DOWN BY THE HONBL DE LHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE ITA NO.2360/DEL/2012 4 FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN V IEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASE, WE ARE OF THE CO NSIDERED VIEW THAT INSTRUCTION NO. 5 OF 2014 DATED 10 TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SA ID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4,00,000/-. 12. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 13. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/12/2015. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 02/12/2015 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR