DCIT, Faridabad V. Sh. Bodan Lal Urf Rahul Kumar Soni, Rewari

ITA 2994/DEL/2014

• Counselvise Citation: 299420114 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 15-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SMT. DIVA SINGH, JUDICIAL MEMBER ITA/IT(SS)A, CO NO. APPELLANT RESPONDENT AY/ ASST. PERIOD ASSESSEE BY 2648/DEL/2014 DCIT, CIR.11(1), NEW DELHI. ROBIN NICHOLAS WOOD, C/O IPM INDIA WHOLESALE TRADING PVT. LTD., 8 TH FLOOR, DLF CENTRE, BLOCK NO.124, PARLIAMENT STREET, NEW DELHI. PAN: AACPW1795L 2010-11 NONE 2292/DEL/2014 ITO, WARD-22(1), NEW DELHI. KIRAN KALRA, A-56, DOUBLE STOREY, 3 RD FLOOR, KALKAJI, NEW DELHI. PAN: AXSPK3059L 2009-10 NONE 3345/DEL/2014 DCIT, CC-03, NEW DELHI. MAHESH WOOD PRODUCTS PVT. LTD., 2042, KATRA TOBACCO, KHARI BAOLI, DELHI. PAN: AAACM0118Q 2006-07 NONE 3027/DEL/2014 ACIT, CIRCLE-36(1), NEW DELHI. KAILASH JATIA, C-66, NAVKUNJ APARTMENTS, MOTHER DAIRY ROAD, PATPARGANJ, DELHI. PAN: AAAPJ4575F 2008-09 NONE 3069/DEL/2014 ACIT, CIRCLE 1, NOIDA. UPDESH KUMAR BHARDWAJ, A-86, SECTOR- 34, NOIDA. PAN: ACWPB5600K 2008-09 NONE ITA NOS.2648/DEL/2014 & 7 APPEALS OF OTHER ASSESSEES 2 3195/DEL/2014 DCIT(TDS), 5 TH FLOOR, A- 2D, SECTOR-24, NOIDA. GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY, H-169, SECTOR-GAMMA, GREATER NOIDA, UTTAR PRADESH.. PAN: MRTG00443C 2008-09 NONE 2994/DEL/2014 DCIT, CC-II, FARIDABAD. BODAN LAL URF RAHUL KUMAR SONI, PROP. M/S NAVDEEP ART JEWELLERS, NO.243-L, MODEL TOWN, REWARI. PAN : BCFPS1063P 2006-07 NONE 2726/DEL/2014 DCIT, CC-18, NEW DELHI. DD CONSTRUCTION PVT. LTD., A-43, ALLAHABAD APARTMENTS, MAYUR VIHAR, NEW DELHI. PAN: AAACD4349Q 2010-11 NONE DEPARTMENT BY : SHRI RAVI JAIN, CIT, DR DATE OF HEARING : 17.12.2015 DATE OF PRONOUNCEMENT : 17.12.2015 ORDER PER DIVA SINGH, JM: BY THESE EIGHT APPEALS FILED THE REVENUE ASSAILS TH E CORRECTNESS OF THE FOLLOWING ORDERS OF THE CIT(A), THE DETAILS OF WHICH ARE AS BELOW:- ITA NO. CIT(A) WHO PASSED THE ORDER CIT(A) ORDER DA TED 2648/DEL/2014 CIT(A)-XV, NEW DELHI. 25.2.2014 2292/DEL/2014 CIT(A)-XXIII, NEW DELHI. 28.1.2014 3345/DEL/2014 CIT(A)-1, NEW DELHI. 13.3.2014 3027/DEL/2014 CIT(A)-XXVIII, NEW DELHI. 24.2.2014 3069/DEL/2014 CIT(A), NOIDA 10.2.2014 3195/DEL/2014 CIT(A), NOIDA 24.2.2014 ITA NOS.2648/DEL/2014 & 7 APPEALS OF OTHER ASSESSEES 3 2994/DEL/2014 CIT(A) (CENTRAL), GURGAON. 14.3.2014 2726/DEL/2014 CIT(A)-III, NEW DELHI. 19.2.2014 2. THE APPEALS HAVE BEEN LISTED BY THE REGISTRY IN VIEW OF THE FACT THAT THE TAX EFFECT IS LESS THAN RS.10 LAC. WE FIN D THAT IN THE PRESENT APPEALS THE REVENUE IS AGGRIEVED BY THE DELETIONS M ADE IN THE RESPECTIVE ORDERS WHERE THE TAX EFFECT IS LESS THAN RS.10 LAC. 3. THE DEPARTMENT WAS REPRESENTED BY CIT, DR, SHRI RAVI JAIN, WHO, IN RESPONSE TO THE CBDT CIRCULAR, STATED THAT IN THE PRESENT APPEALS HE WOULD NEED TIME TO CALL FOR THE REPORT F ROM THE ASSESSING OFFICER AS WELL AS INSTRUCTIONS FROM THE ADMINISTRA TIVE CIT FOR WITHDRAWING THE APPEALS AS THEY HAVE BEEN FILED WIT H APPROVAL OF THE ADMINISTRATIVE CIT. REFERRING TO PARA 7 OF THE AFO RESAID CIRCULAR, THE LD.CIT, DR ALSO SUBMITTED THAT THE WITHDRAWAL OF TH E APPEALS BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT SHOULD NOT BE CONSIDERED AS A PRECEDENT IN THE SUBSEQUENT YEARS OF THE ACCEPTANCE OF THE ISSUES INVOLVED IN A SUBSEQUENT YEAR BEFORE THE ITAT WHERE THE APPEAL MAY BE ABOVE THE TAX LIMIT AS PRESCRIBED IN THE CIRCULA R. ACCORDINGLY IN SUCH AN EVENTUALITY, IN THOSE YEARS THE APPEAL BY T HE ITAT SHOULD BE DECIDED ON MERITS AS HAS BEEN CLARIFIED BY THE CBDT IN PARA 7. THE RELEVANT EXTRACT OF THE CIRCULAR IS ALSO EXTRACTED HEREUNDER:- 7. IN THE PAST, A NUMBER OF INSTANCES HAVE COME TO THE NOTICE OF THE BOARD, WHEREBY AN ASSESSEE HAS CLAIMED RELIEF FROM THE TRIBUNAL OR THE COURT ONLY ON THE GROUND THAT THE DEPARTMENT HAS IM PLICITLY ACCEPTED THE DECISION OF THE TRIBUNAL OR COURT IN THE CASE O F THE ASSESSEE FOR ANY OTHER ASSESSMENT YEAR OR IN THE CASE OF ANY OTHER A SSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR, BY NOT FILING AN APPE AL ON THE SAME DISPUTED ISSUES. THE DEPARTMENTAL REPRESENTATIVES/C OUNSELS MUST MAKE ITA NOS.2648/DEL/2014 & 7 APPEALS OF OTHER ASSESSEES 4 EVERY EFFORT TO BRING TO THE NOTICE OF THE TRIBUNAL OR THE COURT THAT THE APPEAL IN SUCH CASES WAS NOT FILED OR NOT ADMITTED ONLY FOR THE REASON OF THE TAX EFFECT BEING LESS THAN THE SPECIFIED MON ETARY LIMIT AND, THEREFORE, NO INFERENCE SHOULD BE DRAWN THAT THE DE CISIONS RENDERED THEREIN WERE ACCEPTABLE TO THE DEPARTMENT. ACCORDIN GLY, THEY SHOULD IMPRESS UPON THE TRIBUNAL OR THE COURT THAT SUCH CA SES DO NOT HAVE ANY PRECEDENT VALUE. AS THE EVIDENCE OF NOT FILING APPE AL DUE TO THIS INSTRUCTION MAY HAVE TO BE PRODUCED IN COURTS, THE JUDICIAL FOLDERS IN THE OFFICE OF CIT MUST BE MAINTAINED IN A SYSTEMIC MANNER FOR EASY RETRIEVAL. 4. NONE WAS PRESENT FOR AND ON BEHALF OF THE ASS ESSEES. THEREFORE, WE PROCEEDED TO DECIDE THE APPEALS IN THE LIGHT OF THE ABOVE CBDT CIRCULAR. 5. BEFORE WE PROCEED TO DELIBERATE ON THE ISSUE FUR THER, CONSIDERING THE CIRCULAR NO.21/2015 DATED 10 TH DECEMBER, 2015 OF CBDT, WHICH HAS REVISED THE MONETARY LIMIT FOR FILING OF THE DE PARTMENTAL APPEAL TO THE ITAT AT RS.10 LAC, WE DEEM IT APPROPRIATE TO FI RST REFER TO SECTION 268A OF THE INCOME-TAX ACT, 1961 WHICH HAS BEEN INS ERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01 .04.1999, READING AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE 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, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORI TY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSU E IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT P RECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF ITA NOS.2648/DEL/2014 & 7 APPEALS OF OTHER ASSESSEES 5 (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR ; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER AS SESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO T HE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APP EAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIE SCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APP EAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH A PPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUC TIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIR CUMSTANCES UNDER WHICH SUCH APPEAL 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 APPE AL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED U NDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY.] 6. RELEVANT EXTRACTS (PARAS 1 TO 4) FROM THE AFORES AID CBDT CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 IS ALSO RE PRODUCED HEREUNDER FOR READY REFERENCE: SUBJECT : REVISION OF MONETARY LIMITS FOR FI LING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL A ND HIGH COURTS AND SLP BEFORE SUPREME COURT MEASURES FOR REDUCIN G LITIGATION REG. REFERENCE IS INVITED TO BOARDS INSTRUCTION NO 5/20 14 DATED 10.07.2014 WHEREIN MONETARY LIMITS AND OTHER CONDIT IONS FOR FILING DEPARTMENTAL APPEALS (IN INCOME-TAX MATTERS) BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT WERE SPECIFIED. ITA NOS.2648/DEL/2014 & 7 APPEALS OF OTHER ASSESSEES 6 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE T HE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVE N HEREUNDER: S. NO APPEALS IN INCOME -TAX MATTER 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 MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMIT S PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT W OULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEA L IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS DISPUTED ISSUES ). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEAB ILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL B E THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDIT IONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 7. WE HAVE SEEN THAT THE MONETARY LIMITS HAVE BEEN MADE APPLICABLE RETROSPECTIVELY BY THE CBDT IN THE SAID CIRCULAR AS WOULD BE EVIDENT FROM THE FOLLOWING EXTRACT:- 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING ITA NOS.2648/DEL/2014 & 7 APPEALS OF OTHER ASSESSEES 7 APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 AB OVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERA TIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 8. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR BEFO RE THE BENCH AND BEING OF THE CONSIDERED VIEW THAT THERE IS NO N ECESSITY FOR ADJOURNING THE APPEALS AS THE TAX EFFECT INVOLVED I N THE APPEALS OF THE REVENUE IS LESS THAN RS.10 LAC THE ORAL REQUEST WAS REJECTED. HOWEVER, BY WAY OF ABUNDANT CAUTION LIBERTY IS GRANTED TO TH E REVENUE THAT IN CASE ON RECEIPT OF THE ORDER THE ASSESSING OFFICER FINDS THAT THE TAX EFFECT IS ABOVE RS.10 LAC OR IN ANY OTHER MANNER TH E CIRCULAR IS NOT APPLICABLE, HE WOULD BE AT LIBERTY TO FILE A MISCEL LANEOUS APPLICATION POINTING OUT THESE FACTS. WE ALSO TAKING NOTE OF T HE CONCERNS EXPRESSED BY THE LD.CIT, DR AND MAKE IT CLEAR THAT AS A RESULT OF THE DISMISSAL OF THE REVENUES APPEALS ON THE GROUND OF TAX EFFECT THE SAID ORDER WOULD NOT ACT AS A PRECEDENT WHERE THE TAX EF FECT IS MORE IN ANY SUBSEQUENT OR PRIOR YEAR WHERE THE REVENUE WOULD WA NT TO AGITATE THE ISSUES ON SIMILAR GROUNDS BEFORE THE ITAT ON MERIT. ACCORDINGLY, IN THE LIGHT OF THE SUBMISSIONS OF THE LD. DR AND RELY ING ON THE AFORESAID CIRCULAR WHICH AS PER JUDICIAL PRECEDENTS IS BINDIN G ON THE REVENUE, THE APPEALS OF THE REVENUE ARE DISMISSED. RELIANCE IS PLACED ON ORDERS DATED 15.5.2015 IN ITA NO.302/AHD/2014 AND ORDER DA TED 16.12.2015 IN ITA NO.4771/DEL/2012 PASSED BY THE DELHI BENCHES . ITA NOS.2648/DEL/2014 & 7 APPEALS OF OTHER ASSESSEES 8 9. IN THE RESULT, ALL APPEALS OF THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE COURT ON 17/12/2015. SD/- SD/- [G.D. AGRAWAL] [DIVA SINGH] VICE PRESIDENT JUDICIAL MEMBER DATED, 17 TH DECEMBER, 2015. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.