I.T.O., Ward-2(2), Farrukhabad V. Shri Ram Sanehi Tiwari, Farrukhabad

ITA 252/AGR/2013

• Counselvise Citation: 25220314 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 18-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT SHUK LA
• Assessee Lawyers: SAHIB P SATSANGEE
• Keywords: Gift; Question of law; Tax effect; Reassessment proceedings
• Section: 147; 148; 143(3)

Judgement Text

I.T.A. NO.252/AGRA/2013 ASSESSMENT YEAR: 2006-07 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, SMC, AGRA [CORAM: PRAMOD KUMAR AM] ITA NO.252/AGRA/2013 ASSESSMENT YEAR: 2006-07 INCOME TAX OFFICER, ...................... .APPELLANT WARD -2(2), FARRUKHABAD. VS. RAM SANEHI TIWARI, ......RESPONDENT S/O. SHRI ASHARFI LAL TIWARI, VILL. JAHHERI, P.O. PILKHANA, DISTT. FARRUKHABAD. [PAN: ADNPT 1463 G] APPEARANCES BY: AMIT SHUKLA, FOR THE APPELLANT SAHIB P. SATSANGEE, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 18 TH JUNE, 2015 DATE OF PRONOUNCING THE ORDER : 24 TH JUNE, 2015 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 4 TH APRIL, 2013 PASSED BY LD. CIT(A), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) , FOR THE ASSESSMENT YEAR 2006-07, ON THE FOLLOWING GROUNDS : - 1. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE INFORMATION PASSED TO THE AO BY OTHER AO IS NOT THE MATERIAL TO BE CONSIDERED U/S. 148 AND TREATING INFORMATION OF ACT ION U/S. 147 IS INVALID. 2. THAT THE CIT(A) FAILED TO APPRECIATE THAT THE DE CISION TO COMMENCE THE REASSESSMENT PROCEEDINGS U/S. 147 WAS ENTIRELY THAT OF THE ASSESSING OFFICER. 3. THAT THE CIT(A) FAILED TO APPRECIATE THAT THE SO URCE OF OPENING CAPITAL BALANCE OF RS.411723/- AS DISCLOSED IN THE CASH FLOW STATEMENT SUBMITTED DURING THE COURSE OF RE-ASSESSMENT PROCEE DINGS REMAINED UNEXPLAINED. I.T.A. NO.252/AGRA/2013 ASSESSMENT YEAR: 2006-07 PAGE 2 OF 4 4. THAT THE CIT(A) ERRED ON FACTS IN DELETING THE A DDITION OF R.3,50,000/- ON ACCOUNT OF UNEXPLAINED LOAN & GIFT. 5. THAT THE CIT(A) ERRED IN DELETING THE EXPLAINED DEPOSIT OF RS.157100/- IN THE BANK ACCOUNT. 2. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE MATERIAL ON RECORD. I NOTICE THAT SINCE THE TAX EFFECT IN THIS APPEAL FIL ED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) IS LESS THAN RS.4,00,000/-, THE SAME IS IN CONTRAVENTION OF C.B.D.T. CIRCULAR/INSTRUCTION NO.5/2014 DATED 10.07.2014 WHI CH FINDS STATUTORY FORCE UNDER THE PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, 1 961. THE SAME IS, THEREFORE, NOT MAINTAINABLE, ALSO IN VIEW OF THE DECISIONS OF HON BLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. SHYAM BIRI WORKS REPORTED IN (2015) 57 TAXMANN.COM 157 (ALLAHABAD) AND ORDER DATED 28.01.2015 OF ITAT, AHMEDABAD BENCH IN ITA NO.163/AHD/2014 IN THE CASE OF ACIT VS. SMT. BELABEN HITENBHAI SHAH. THE CLAUSE NO.3 OF THE SAID C.B.D.T. INSTRUCTION HAS MADE IT CLEAR THAT APPEAL BEFORE TH E TRIBUNAL BY THE REVENUE WILL HENCEFORTH BE FILED WHERE TAX EFFECT EXCEEDS RS.4,0 0,000/-. 3. AS HELD BY THE AHMEDABAD DIVISION BENCH B, IN THE CASE OF BELABEN HITENBHAI SHAH (SUPRA), THIS MONETARY LIMIT APPLIES ON THE PE NDING APPEALS AS WELL. THE RELEVANT OBSERVATIONS OF THE DIVISION BENCH, IN THE SAID CAS E, ARE AS FOLLOWS :- 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. INSTRUCTION NO.5/2014 DATED10. 07.2014 HAS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTM ENT BEFORE INCOME-TAX APPELLATE TRIBUNAL, HONBLE HIGH COURTS AND HONBLE SUPREME COURT. MONETARY LIMIT FOR FILING THE APPEAL BEFORE THE TRI BUNAL IS RS. 4 LACS; BEFORE HONBLE HIGH COURT RS. 10 LACS AND BEFORE HONBLE S UPREME COURT RS. 25 LACS. HONBLE SUPREME COURT IN THE ORDER DATED 25.0 3.2011 REFERRED TO ABOVE HAS HELD AS UNDER:- IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CA SES IS LESS THAN RS. 10.00 LACS. THE DEPARTMENT HAS RECENTLY IS SUED AN INSTRUCTION BEARING NO. 3/2011 DATED 09.02.2011, WH ICH IS IDENTICAL TO ITS EARLIER INSTRUCTION BEARING NO. 5/ 2008 DATED 15.05.2008 EXCEPT THAT IN SO FAR AS THE HIGH COURT IS CONCERNED, THE MONETARY LIMIT IN RESPECT OF APPEALS WHERE THE QUESTIONS OF LAW RAISED NEED NOT TO BE ANSWERED, HA S BEEN RAISED FROM RS. 4.00 LACS TO RS. 10.00 LACS. THE DI VISION BENCH OF THIS COURT IN ITA NO. 89/1999 DECIDED ON 28.01.2 011 HAS I.T.A. NO.252/AGRA/2013 ASSESSMENT YEAR: 2006-07 PAGE 3 OF 4 ALREADY HELD THAT THE INSTRUCTION BEARING NO. 5/200 8 DATED 15.05.2008 WOULD APPLY EVEN TO THE OLD PENDING REFE RENCES AND APPEALS. THIS PRINCIPLE WOULD THUS NATURALLY EQ UALLY APPLY TO THE INSTANT INSTRUCTION BEARING NO.3/2011 DATED 09.02.2011, AS WELL. THE TAX EFFECT BEING LESS THAN RS. 10.00 LACS, THE QUESTION OF LAW DOES NOT REQUIRE TO BE AN SWERED. THE APPEALS ARE DISPOSED OF ACCORDINGLY. 4.1 HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS . DELHI RACE CLUB LTD. IN ITA NO. 128/2008 DATED 03.03.2011 HAS HELD AS UNDER :- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S. 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 L ACS, 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 2ND AUGUST, I.T.A . NO. 163/AHD/14 A.Y. 05-06 [ACIT VS. SMT. BELABEN H. SHA H] PAGE 4 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD AL SO APPLY TO PENDING CASES. 4.2 IN VIEW OF THE ABOVE, INSTRUCTION NO. 5/2014 DA TED 10.07.2014 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLLOWING THE PRECEDENT, IT IS HELD THAT THE APPEAL IS NOT MAINTAINABLE IN THE INSTANT CASE AS THE TAX EFFECT IS LESS THAN RS.4 LACS. ACCORDINGLY, IT IS HELD THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 4. IN VIEW OF THE ABOVE DISCUSSIONS AND IN THE CIRC UMSTANCES AND FACTS OF THE CASE, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND THE SAME IS DISMISSED AS NOT MAINTAINABLE. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON 24 TH JUNE, 2015. SD/- PRAMOD KUMAR (ACCOUNTAN T MEMBER) AGRA, THE 24 TH JUNE, 2015 PBN/* I.T.A. NO.252/AGRA/2013 ASSESSMENT YEAR: 2006-07 PAGE 4 OF 4 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA