ITO, New Delhi V. Mr. Bhupendra Singh Monga, Delhi

ITA 3031/DEL/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8801 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 15-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHIR H.S. SIDHU, JUDICIAL MEMBER ITA NO . 3031 / DEL/201 3 ASSESSMENT YEAR: 200 7 - 0 8 INCOME TAX OFFICER, VS. M R. BHUPENDRA SINGH MONGA , WARD 37(2) 2687, BARADARI, BALLIMARAN, ROOM NO. 2008, E - 2 BLOCK, DELHI CIVIC CENTRE, J.L. MARG, (PAN: AAACS0463Q) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : MS. Y. KAKKAR, DR RESPONDENT BY : NONE DATE OF HE ARING : 30 - 0 3 - 2015 DATE OF ORDER : 30 - 0 3 - 2015 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 01 / 2 / 201 3 OF L D. CIT(A) - X XVIII , NEW DELHI. 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTMENT READ AS UNDER: 1. IN THE FACTS OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITIONS MADE BY THE AO ON ACCOUNT OF CASH DEPOSITS EVEN THOUGH THE ASSESSEE HAD NOT PROPERTY EXPLAINED THE SOURCE OF CASH DEPOSITS ALONG WITH NECESSARY DOCUMENTARY EVIDENCES BEFORE TH E AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. THE APPELLANT CRAVE LEAVE TO ADD, AMEND OR MODIFY ANY / ALL THE GROUND OF APPEAL BEFORE OR DURING THE COURSE OF APPEAL. IT IS PRAYED THAT THE ORDER OF CIT(A) IS CONTRARY TO THE FACTS ON RECORD AND SETTLE D POSITION OF LAW; AND THE ORDER OF THE AO DESERVES TO BE RESTORED. ITA NO. 3031 / D EL /20 1 3 ( ITO V BHUPENDRA SINGH MONGA ) 2 3. AT THE THRESHOLD WE FIND THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 4,00,000/ - , THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR IS SUED BY THE CBDT AND THE PROVISIONS CONTAINED IN THE SECTION 268A OF THE INCOME TAX ACT, 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). 4. L D. DR SUPPORTED THE ORDER OF AO AND STATED THAT THE LATEST INSTRUCTION IS NOT APPLICABLE IN THE PRESENT CASE, BECAUSE THE REVENUE HAS FILED THE PRESENT APPEAL ON 15.5.2013 AND THE CBDT S INSTRUCTION NO. 5 OF 2014 CAME ON 10 TH JULY, 2014, WHICH IS VERY MUCH AFTER THE FILING OF THE APPEAL AND HENCE, IS NOT APPLICABLE IN THE PRESENT CASE. . 5. IN THIS CASE N OTICE WAS SENT TO BOTH THE PARTIES ON THE ADDRESS GIVEN BY THEM, HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY REQUEST FOR ADJOURNMENT IS FILED. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT NO USEFUL PURPOSE WOULD BE SERVED TO ADJOURN THE C ASE AGAIN AND AGAIN. THEREFORE, WE ARE DECIDING THE APPEAL, EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS AVAILABLE ON RECORD. 6 . AFTER CONSIDERING THE SUBMISSIONS OF LD. DR AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/1999. THE RELEVANT PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER IN COME - 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, INST RUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), AN 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 O R APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR ITA NO. 3031 / D EL /20 1 3 ( ITO V BHUPENDRA SINGH MONGA ) 3 (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR; (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS B EEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE ORDERS 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 ACQUIESC ED IN THE DECISION ON THE DISPUTED 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 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 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. 7 . IT IS NOT IN DISPUTE THAT T HE BOARD S INSTRUCTION OR DIRECTIONS ISSUED TO THE OTHER IN COME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE A PPEAL. 8 . IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO. 5/2014 DATED 10 TH JULY, 2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 4,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 9 . KEEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 2 014 DATED 10 TH JULY, 2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961 , WE ARE OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISI ONS OF THE HON BLE PUNJAB & HARYANA HIGH COURT: 1. CIT VS. OSCAR LABORATORIES P. LTD. (2010) 324 ITR 115 (P&H); 2. CIT VS. ABINASH GUPTA (2010) 327 ITR 619 (P&H); 3. CIT VS. VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H) (FB). 10 . SIMILARLY, THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008, ORDER DATED 03.03.2011 BY FOLLOWING ITA NO. 3031 / D EL /20 1 3 ( ITO V BHUPENDRA SINGH MONGA ) 4 THE EARLIER ORDER DATED 02.08.2010 IN ITA NO. 179/1991 IN THE CASE OF CIT DELHI - III VS. M/S P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 1 1 . THUS, FROM THE RATIO LAID DOWN BY THE HON BL DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN I N THE AFORESAID REFERRED TO CASE, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO. 5 OF 2014 DATED 10 TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEF ORE THE ITAT IS RS. 4,00,000/ - . 1 2 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 1 3 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 / 3 /201 5 , UPON CONCLU SION OF HEARING. SD/ - SD/ - ( G.D. AGRAWAL ) ( H.S. SIDHU ) VICE PRESIDENT JUDICIAL MEMBER DATED: 30 / 3 /201 5 * SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, I TAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR ITA NO. 3031 / D EL /20 1 3 ( ITO V BHUPENDRA SINGH MONGA ) 5