Income Tax Officer, Lucknow V. M/s. M.I.Builders Pvt.Ltd., Lucknow

ITA 288/LKW/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1647 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-02-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 18-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: VIVEK MEHORTRA
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI J SUDHAKAR REDDY , ACCOUNTANT MEMBER ITA NO. 288/LKW/2012 ASSESSMENT YEAR: 2007 - 0 8 INCOME - TAX OFFICER - 4 (4) LUCKNOW V. M/S M.I. BU ILDERS PVT. LTD. 6 TH FLOOR, NEW JANPATH COMPLEX OPP. INCOME TAX OFFICE 9 - A, ASHOK MARG, LUCKNOW PAN: AABCM0882A (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. RANU BISWAS, D.R. RESPONDENT BY: SHRI. VIVEK MEHORTRA, C.A. DATE OF HEARING: 12.03.13 DAT E OF PRONOUNCEMENT: 15.03.13 O R D E R PER S UNIL KUMAR YADAV : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS, WHICH ARE AS UNDER: - 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN HOLDING TH E ASSESSMENT TO BE BAD IN LAW AND VOID AB INITIO WITHOUT APPRECIATING THE FACT THAT THE NOTICE U/S 115 WE(2) WAS ISSUED WITHIN TIME ON THE ADDRESS AVAILABLE IN THE ASSESSEE'S PAN/AST DATABASE. 2. THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN F A ILING TO A PPRECIATE THAT THE ASSESSEE ATTENDED HEARING BEFORE THE AO ON VARIOUS DATES. THIS INDICATES THAT THE SAID NOTICE HAS BEEN SERVED UPON THE ASSESSEE. 2 . ON PERUSAL OF RECORD, WE FIND THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN THE PRESCRIBED MONET ARY LIMIT, THEREFORE, THE : - 2 - : DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE INSTRUCTIONS ISSUED BY C.B.D.T. 3 . THE LEARNED D. R. DID NOT CONTROVERT THE ABOVE FACT. 4 . IT IS NOTICED THAT SECTION 268A OF THE ACT HAS BEEN INSERTED BY THE FINANCE ACT , 2008 W ITH RETROSPECTIVE EFFECT FROM 1.4.1999 . THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: - 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME - TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), A N INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE C ASE OF ( A ) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR ( B ) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE O RDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED : - 3 - : ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEA L OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ] 5 . IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE I NCOME - TAX A UTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE PROVISIONS OF SECTION 268A OF THE ACT , SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESC RIBED FOR NOT FILING THE APPEAL. ACCORDINGLY, THIS APPEAL IS DISMISSED. 6 . IN THE R ESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.3.2013. SD/ - SD/ - [J SUDHAKAR REDDY ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15.3.2013 JJ: 1303 : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A ) 4 . CIT 5 . DR ASSISTANT REGISTRAR