ITO, New Delhi V. Sh. Satish Kumar, New Delhi

ITA 2747/DEL/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6213 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 28-03-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 27-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHANKAR DWIVEDI; SSH V K TULSIAN
• Keywords: Unexplained cash credit; Retrospective amendment; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SH. I.C. SUDHIR , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 2747 /DEL/ 2011 ASSESSMENT YEAR: 2005 - 06 INCOME TAX OFFICER, WARD - 36(2), 1 ST FLOOR, H - BLOCK, VIKAS BHAWAN, I.P. ESTATE, NEW DELHI VS. SH. SATISH KUMAR, A - 126, PREET VIHAR, DELHI - 110092 (PAN: AGEPM5134F) (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY S/SH. V.K. TULSIAN & SHANKAR DWIVEDI, CA DATE OF HEARING 28.03.2016 DATE OF PRONOUNCEMENT 31 . 03.2016 ORDER PER O.P. KANT, A. M. : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DATED 24.11.2009 IN RELATION TO ASSESSMENT YEAR 2005 - 06 , RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE F ACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A)HAS ERRED BOTH FACTS AND LAW DELETING AN ADDITION OF RS. 13,40,790/ - AS UNEXPLAINED CREDITORS AND RS. 7,04,000/ - AS UNEXPLAINED CASH DEPOSIT MADE BY THE ASSESSING OFFICER U/S. 68 OF THE IT ACT, 1 961, AS THE ASSESSEE COULD NOT ESTABLISHED THE IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE CREDITORS COULD BE ASCERTAINED, HOWEVER, ASSESSEE HAS FAILED DISCHARGE HIS PRIMARY ONUS TO SUBMIT THIS DOCUMENT AND PROVING THE CREDITWORTHI NESS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX(A) HAS ERRED BOTH FACTS AND LAW DELETING AN ADDITION OF RS. 6,05,133/ - ON VARIOUS 2 ITA NO. 2747/DEL/2011 AY: 2005 - 06 EXPENSES AFTER REJECTING THE BOOKS OF ACCOUNTS OF THE ASSESSEE U/S 145(3) OF THE I.T. ACT. THE COMMISSIONER OF INCOME TAX(A) HAS NOT GIVEN ANY REASON FOR ACCEPTING THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 3. THE COMMISSIONER OF INCOME TAX(A) HAS IGNORED THE PROVISIONS LAID DOWN UNDER SECTIONS 68 & 145(3) OF THE I.T. ACT WHILE DELETI NG THE ADDITION. 4. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. WHEN THE CASE WAS CALLED UPON, NONE RESPONDED FROM THE SIDE OF DEPARTMENT, WHEREAS ASSESSEE S COUNSEL WAS PRESENT. HOWEVER, REVENUE HAS FILED APPLICATION FOR ADJOURNMENT WHICH WAS REJECTED BY THIS BENCH ON THE GROUND THAT NO FRUITFUL PURPOSE WOULD BE SERVE D TO ADJOURN THE MATTER BECAUSE THE TAX EFFECT INVOLVED IN THE MATTER IS LESS THAN RS. 10 LAKHS . IT IS NOTICED THAT THE CBDT HAS ISSUED CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 WITH RETROSPECTIVE EFFECT, REVISING THE MONETARY LIMIT TO RS.10,00,000/ - FOR NO T FILING APPEALS BEFORE THE TRIBUNAL AND THE TAX EFFECT INVOLVED IN THE INSTANT APPEAL IS LESS THAN RS.10,00,000/ - . 3. FROM PARA 10 OF THE ABOVE CIRCULAR, IT IS PALPABLE THAT THE INSTRUCTION IS APPLICABLE TO THE PENDING APPEALS ALSO WITH RETROSPECTIVE EFFE CT AND THERE IS A CLEAR - CUT DIRECTION TO THE DEPARTMENT TO WITHDRAW OR NOT PRESS SUCH APPEALS FILED BEFORE THE ITAT, WHEREIN TAX EFFECT IS LESS THAN RS.10,00,000/ - . GOING BY THE PRESCRIPTION OF THE AFORE - NOTED CIRCULAR, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HAVE EITHER NOT FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL OR WITHDRAWN THE SAME AS THE TAX EFFECT IN THIS APPEAL IS ADMITTEDLY LESS THAN THE PRESCRIBED LIMIT I.E. RS. 10,00,000/ - FOR NOT FILING THE APPEAL. ACCORDINGLY , WE DISMISS THE INSTANT APPE AL W ITHOUT GOING INTO MERITS OF THE CASE. 3 ITA NO. 2747/DEL/2011 AY: 2005 - 06 4. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 3 1 S T MARCH , 2016 . S D / - S D / - ( I.C. SUDHIR ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 1 S T MARCH , 2016 . RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI