DDIT, New Delhi V. Sh. Nagesh Kholi, New Delhi

ITA 2668/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6515 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 16-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT G.D. AGRAWAL, VICE PRESIDENT AND AND AND AND SMT. BEENA A. PILLAI SMT. BEENA A. PILLAI SMT. BEENA A. PILLAI SMT. BEENA A. PILLAI, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 2668 2668 2668 2668 /DEL/2014 /DEL/2014 /DEL/2014 /DEL/2014 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 200 200 200 200 9 99 9 - -- - 10 1010 10 DEPUTY DIRECTOR OF INCOME DEPUTY DIRECTOR OF INCOME DEPUTY DIRECTOR OF INCOME DEPUTY DIRECTOR OF INCOME TAX, CIRCLE TAX, CIRCLE TAX, CIRCLE TAX, CIRCLE- -- -3(1), 3(1), 3(1), 3(1), INTERNATI INTERNATI INTERNATI INTERNATIONAL TAXATION, ONAL TAXATION, ONAL TAXATION, ONAL TAXATION, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. SHRI NAGESH KHOLI, SHRI NAGESH KHOLI, SHRI NAGESH KHOLI, SHRI NAGESH KHOLI, C/O RAGHU NATH RAI & CO., C/O RAGHU NATH RAI & CO., C/O RAGHU NATH RAI & CO., C/O RAGHU NATH RAI & CO., 9, MATHURA ROAD, 9, MATHURA ROAD, 9, MATHURA ROAD, 9, MATHURA ROAD, JANGPURA JANGPURA JANGPURA JANGPURA- -- -B, B,B, B, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 014. 110 014. 110 014. 110 014. PAN : BBYPK3694N. PAN : BBYPK3694N. PAN : BBYPK3694N. PAN : BBYPK3694N. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P. DAM KANUNJNA, SENIOR DR. RESPONDENT BY : SHRI S AMIR JAIN, CA. DATE OF HEARING : 16.03.2016 16.03.2016 16.03.2016 16.03.2016 DATE OF PRONOUNCEMENT : 17.03.2016 17.03.2016 17.03.2016 17.03.2016 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: :- -- - THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 200 9-10 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXIX, N EW DELHI DATED 24 TH FEBRUARY, 2014. 2. IT IS OBSERVED THAT THE TAX EFFECT INVOLVED IN THI S APPEAL BY THE REVENUE IS BELOW `10 LAKHS. THE CBDT IN ITS CIRCULAR NO.21/2015 DATED 10 TH DECEMBER, 2015 HAS REVISED THE MONETARY LIMIT FOR FI LING OF THE DEPARTMENTAL APPEALS TO THE ITAT AT `10 LAKHS WHI CH IS EVIDENT FROM PARAGRAPH 3 OF THE CIRCULAR, WHICH READS AS UNDE R:- 3. HENCEFORTH, APPEAL/SLPS SHALL NOT BE FILED IN CASE S WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LI MITS GIVEN HEREUNDER:- ITA-2668/DEL/2014 2 S.NO. APPEALS IN INCOME - TAX MATTERS MONETARY LIMIT (IN RS) 1. BEFORE APPELLATE TRIBUNAL 10,00,000/ - 2. BEFORE HIGH COURT 20,00,000/ - 3. BEFORE SUPREME COURT 25,00,000/ - IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED ME RELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASE S IS TO BE DECIDED ON MERITS OF THE CASE. 3. IN PARAGRAPH 10 OF THE CIRCULAR, SUCH MONETARY LI MITS HAVE BEEN MADE APPLICABLE RETROSPECTIVELY. FOR READY REFERENC E, WE REPRODUCE PARAGRAPH 10 BELOW:- 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PE NDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WH EN SUCH APPEAL WAS FILED. 4. THEREFORE, THE ABOVE CIRCULAR WOULD BE SQUARELY A PPLICABLE TO THE APPEAL UNDER CONSIDERATION BEFORE US. 5. LEARNED SENIOR DR WHO APPEARED AT THE TIME OF HE ARING BEFORE US STATED THAT HE NEEDS SOME TIME TO CALL FOR THE REPOR T FROM THE ASSESSING OFFICER AS WELL AS INSTRUCTIONS FROM ADMINISTRATIV E CIT FOR WITHDRAWING THIS APPEAL BECAUSE THE APPEAL WAS FILED W ITH THE APPROVAL OF ADMINISTRATIVE CIT. LEARNED CIT-DR FURT HER POINTED OUT THAT IN PARAGRAPH 7 OF THE SAID CIRCULAR, IT HAS BEEN CLARIFIED BY THE CBDT THAT WITHDRAWAL OF THIS APPEAL BY THE REVENUE O N ACCOUNT OF LOW TAX EFFECT SHOULD NOT BE CONSIDERED AS A PRECEDENT IN THE SUBSEQUENT YEARS OF THE ACCEPTANCE OF ISSUES INVOLVED IN THIS APPEA L AND, ITA-2668/DEL/2014 3 THEREFORE, IF IN THE SUBSEQUENT YEAR SIMILAR ISSUE ARISE S BEFORE THE ITAT WHERE THE APPEAL IS ABOVE THE TAX LIMIT AS PRESCRIBED IN THIS CIRCULAR, THE SAME SHOULD BE DECIDED ON MERITS. 6. LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, STATED THAT THE CIRCULAR IS SQUARELY APPLICABLE TO THE FACTS OF TH E ASSESSEES CASE. 7. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE SIDES, W E ARE OF THE OPINION THAT THERE IS NO NECESSITY FOR ADJOURNING THE APPEAL AND CALLING THE REPORT FROM THE ASSESSING OFFICER BECAUSE, APPARENTL Y, THE TAX EFFECT INVOLVED IN THIS APPEAL OF THE REVENUE IS BELO W `10 LAKHS. HOWEVER, WE ADD HERE THAT IF ON RECEIPT OF ORDER TH E ASSESSING OFFICER FINDS THAT THE TAX EFFECT IS ABOVE `10 LAKHS OR, IN AN Y OTHER MANNER, THE CIRCULAR IS NOT APPLICABLE, HE WILL BE AT LIBERTY TO FILE THE MISCELLANEOUS APPLICATION. WE ALSO AGREE WITH THE CONTENTION OF THE LEARNED CIT-DR THAT THIS ORDER WOULD NOT BE CONSIDERED AS AN ACCEPTAN CE BY THE REVENUE ON THE ISSUE INVOLVED IN THIS APPEAL AND WILL NOT BE AN ESTOPPEL FOR THE REVENUE TO TAKE UP THE ISSUE INVOLVED IN THIS APPEAL BEFORE THE ITAT ON MERITS IF THE TAX EFFECT IN THOSE YEARS IS MORE THAN `10 LAKHS. WITH THIS REMARK, WE DEEM IT PROPER TO DI SMISS THE APPEAL IN THE LIGHT OF THE CIRCULAR NO.21/2015 OF CBDT DAT ED 10 TH DECEMBER, 2015. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . DECISION PRONOUNCED IN THE OPEN COURT ON 17.03.2016. SD/- SD/- ( (( ( BEENA A. PILLAI BEENA A. PILLAI BEENA A. PILLAI BEENA A. PILLAI ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. ITA-2668/DEL/2014 4 COPY FORWARDED TO: - 1. APPELLANT : DEPUTY DIRECTOR OF INCOME TAX, C IRCLE DEPUTY DIRECTOR OF INCOME TAX, CIRCLE DEPUTY DIRECTOR OF INCOME TAX, CIRCLE DEPUTY DIRECTOR OF INCOME TAX, CIRCLE- -- -3(1), 3(1), 3(1), 3(1), INTERNATIONAL TAXATION, NEW DELHI. INTERNATIONAL TAXATION, NEW DELHI. INTERNATIONAL TAXATION, NEW DELHI. INTERNATIONAL TAXATION, NEW DELHI. 2. RESPONDENT : SHRI NAGESH KHOLI, C/O RAGHU N SHRI NAGESH KHOLI, C/O RAGHU N SHRI NAGESH KHOLI, C/O RAGHU N SHRI NAGESH KHOLI, C/O RAGHU NATH RAI & CO., ATH RAI & CO., ATH RAI & CO., ATH RAI & CO., 9, MATHURA ROAD, JANGPURA 9, MATHURA ROAD, JANGPURA 9, MATHURA ROAD, JANGPURA 9, MATHURA ROAD, JANGPURA- -- -B, NEW DELHI B, NEW DELHI B, NEW DELHI B, NEW DELHI 110 014. 110 014. 110 014. 110 014. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR