ITO, New Delhi V. Sh. Narender Kumar Gaur, Gurgaon

ITA 3122/DEL/2013

• Counselvise Citation: 312220114 RSA 2013
• Duration Of Justice: 2 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 22-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES :E: NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, AM & SHRI SUDHANSHU SRIVASTAVA, JM ITA NO: 3122/DEL/2013 AY: - 2008-09 INCOME TAX OFFICER, SHRI NARENDER KUMAR GAUR, WARD-33(4), ROOM NO. 1603 TOWER-1, 1104, SUSHANT ESTATE, E-2 TOWER, DR. S.P. MUKHERJEE SUSHAN T LOK, PHASE-1, GURGAON, CIVIC CENTRE, J.L. NEHRU MARG HARYANA. NEW DELHI. (PAN AAEPG3182B) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P DAM KANUNJNA, SR. DR RESPONDENT BY : NONE DATE OF HEARING : 22.12.2015 DATE OF PRONOUNCEMENT : 31. 12.2015 O R D E R PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE D IRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXVI DATED 28. 2.2013 PERTAINING TO THE ASSESSMENT YEAR 2008-09. THE RELEVANT ASSESSMENT YE AR IS 2003-04. THE GROUNDS OF APPEAL OF THE REVENUE ARE AS UNDER:- 1. THE CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 1 8,06,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH IN HAND. 2. THE CIT(A) HAS ERRED IN ALLOWING BENEFIT OF RS. 5 L AKH SURRENDERED DURING AY 2007-08 ON ACCOUNT OF EXPENDITURE MADE OUT SIDE BOO KS OF ACCOUNTS. 2. DURING THE COURSE OF HEARING, THE LD. D.R., ALTHOUG H SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTR OVERT THE FACT THAT TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS. 10,00,000/-. 3. THE CBDT IN ITS CIRCULAR NO. 21/2015 DATED 1 0 TH DECEMBER, 2015 HAS REVISED THE MONETARY LIMIT FOR FILING OF THE DEPARTMENTAL A PPEALS TO THE ITAT AT RS. 10 LAKHS WHICH IS EVIDENT FROM PARAGRAPH 3 OF THE CIRCULAR, WHICH READS AS UNDER :- 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY L IMITS GIVEN 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 MONETA RY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. IN PARAGRAPH 10 OF THE CIRCULAR, SUCH MONETARY LIMITS HAVE BEEN MADE APPLICABLE RETROSPECTIVELY. FOR READY REFERENCE, WE REPRODUCE PARAGRAPH 10 BELOW :- 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING 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 WHEN SUCH APPEAL WAS FILED. 5. THEREFORE, THE ABOVE CIRCULAR WOULD BE SQUAREL Y APPLICABLE TO THE APPEAL UNDER CONSIDERATION BEFORE US. 6. LEARNED CIT-DR WHO APPEARED AT THE TIME OF H EARING BEFORE US STATED THAT HE NEEDS SOME TIME TO CALL FOR THE REPORT FROM THE ASS ESSING OFFICER AS WELL AS INSTRUCTIONS FROM ADMINISTRATIVE CIT FOR WITHDRAWIN G THIS APPEAL BECAUSE THE APPEAL WAS FILED WITH THE APPROVAL OF ADMINISTRATIVE CIT. LEARNED CIT-DR FURTHER POINTED OUT THAT IN PARAGRAPH 7 OF THE SAID CIRCULAR, IT HA S BEEN CLARIFIED BY THE CBDT THAT WITHDRAWAL OF THIS APPEAL BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT SHOULD NOT BE CONSIDERED AS A PRECEDENT IN THE SUBSEQUENT YEAR OF THE ACCEPTANCE OF ISSUES INVOLVED IN THESE APPEALS AND, THEREFORE, IF IN THE SUBSEQUENT YEAR SIMILAR ISSUE ARISES BEFORE THE ITAT WHERE THE APPEAL IS ABOVE TH E TAX LIMIT AS PRESCRIBED IN THIS CIRCULAR, THE SAME SHOULD BE DECIDED ON MERITS. 7. AFTER CONSIDERING THE SUBMISSIONS OF LEARNED D R, THE FACT OF THE CASE AND THE CIRCULAR OF THE CBDT, WE ARE OF THE OPINION THAT TH ERE IS NO NECESSITY FOR ADJOURNING THE APPEAL AND CALLING THE REPORT FROM THE ASSESSIN G OFFICER BECAUSE APPARENTLY, THE TAX EFFECT INVOLVED IN THIS APPEAL OF THE REVENUE I S BELOW RS. 10 LAKHS. HOWEVER, WE ADD HERE THAT IF ON RECEIPT OF ORDER, THE ASSESSING OFFICER FINDS THAT THE TAX EFFECT IS ABOVE RS. 10 LAKHS OR, IN ANY OTHER MANNER, THE CIR CULAR IS NOT APPLICABLE, HE WILL BE AT LIBERTY TO FILE A MISCELLANEOUS APPLICATION. WE ALSO AGREE WITH THE CONTENTION OF THE LEARNED CIT-DR THAT THIS ORDER WOULD NOT BE CON SIDERED AS AN ACCEPTANCE BY THE REVENUE ON THE ISSUE INVOLVED IN THESE APPEALS AND WILL NOT BE AN ESTOPPEL FOR THE REVENUE TO TAKE UP THE ISSUE INVOLVED IN THESE APPEALS BEFORE THE ITAT ON MERITS IF THE TAX EFFECT IN THOSE YEARS IS MORE THA N RS. 10 LAKHS. WITH THIS REMARK, WE DEEM IT PROPER TO DISMISS THE APPEALS IN THE LIG HT OF THE CIRCULAR NO. 21/2015 OF CBDT DATED 10 TH DECEMBER, 2015. 8. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.12.2015. SD/- SD/- (J. SUDHAKAR REDDY) (SUDH ANSHU SRIVASTAVA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 31.12.2015 VEENA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI. DATE 1. DRAFT DICTATED ON 28.12.2015 2. DRAFT PLACED BEFORE THE AUTHOR 29.12.2015 3. DRAFT PLACED BEFORE THE OTHER MEMBER 4. APPROVED DRAFT COMES TO THE SR.PS/PS 5. FILE SENT TO THE BENCH CLERK 6. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 7. DATE ON WHICH FILE GOES TO THE AR 8. DATE OF DISPATCH OF ORDER.