ITO, RAJSAMAND V. Shri Devendra Paliwal, RAJSAMAND

ITA 324/JODH/2008

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62069 (ITAT-JODHPUR)
• Duration Of Justice: 4 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 07-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI R.K.GUPTA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 324/JU/2008 ASSESSMENT YEAR: 2004-05 THE ITO, VS. SHRI DEVENDRA PALIWAL, WARD-1, PROP.M/S ARAVALI MOTORS, RAJSAMAND RAJSAMAND PAN NO. AEBPP9921A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R. KOKANI RESPONDENT BY : SHRI AMIT KOTHARI DATE OF HEARING : 24.07.2012 DATE OF PRONOUNCEMENT : 24.07.2012 ORDER PER N.K.SAINI, A.M. THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORD ER DATED 1.2.2008 OF THE CIT(A), UDAIPUR RELEVANT TO ASSESS MENT YEAR 2004-05. 2. DURING THE COURSE OF HEARING, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS APPEAL IS RS. 2,91,490/ - WHICH IS LESS THAN THE 2 AMOUNT PRESCRIBED BY THE CBDT WHERE DEPARTMENT OUGH T NOT TO HAVE FILED THE APPEAL. 3. THE LEARNED D.R. ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER BUT COULD NOT CONTROVERT THE AFORESAID FACT THAT TAX EFFECT IN THIS APPEAL IS LESS THAN RS.3,00,000/-. 4. AFTER CONSIDERING THE SUBMISSIONS OF LEARNED D. R. AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/99. 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 AUTH ORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR R EFERENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PROVISIONS OF TH IS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME- TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION F OR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASS ESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FIL ING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN T HE CASE OF (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 THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB- 3 SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE , BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT T HE INCOME- TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR RE FERENCE 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 REFERENC E 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 A PPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE B EEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SEC TIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY.] 5. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE OTHER INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED T HE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT I N THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 6. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTI ON NO.3 OF 2011 DATED 09.02.2011, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 3,00,000/- FOR FILING THE APPEAL BEFORE THE TR IBUNAL. 7. KEEPING IN VIEW THE CBDT INSTRUCTION NO.3 OF 201 1 DATED 09.02.2011 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, WE ARE OF THE VIEW THAT THE REVENUE SHOULD NO T HAVE FILED THE 4 INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS OF HON'BLE PU NJAB & HARYANA HIGH COURT :- 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 3. CIT V VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H)(FB) 8. SIMILARLY THE HONBLE DELHI HIGH COURT IN THE CA SE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER DATED 03.0 3.2011 BY FOLLOWING THE EARLIER ORDER DATED 02.08.2010 IN ITA NO.179/19 91 IN THE CASE OF CIT DELHI-III V. M/S. P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 9. FROM THE RATIO LAID DOWN BY THE HONBLE JURISDIC TIONAL HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIR CULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY K EEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, WE AR E OF THE CONSIDERED VIEW THAT INSTRUCTION NO.3/11 DATED 09.02.2011 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SA ID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 3.00 LACS. 5 10. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 11. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24.07.2 012 ) SD/- SD/- (R.K.GUPTA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : JULY, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE LD. DR BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR