ACIT, New Delhi V. Sh. Vinay Malloo, Mumbai

ITA 3307/DEL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6552 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 12-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 28-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NOS. 3306 & 3307/DEL/2012 ASSESSMENT YEARS: 2006-07 & 2007-08 ACIT, CENTRAL CIRCLE -1 VS. SH. VINAY MALOO, NEW DELHI 221, MAKER TOWER, B-WING, ROOM NO. 322, III FLOOR, 22 ND FLOOR, CUFFE PAREL, COLABA ARA CENTRE, JHANDEWALAN MUMBAI EXTENSION, NEW DELHI (PAN: AFHPM5420N) NEW DELHI ( APPELLANT) (RESPONDENT) APPELLANT BY : SMT. SULEKHA VERMA, CIT (DR) RESPONDENT BY : NONE DATE OF HEARING : 12-02-2016 DATE OF ORDER : 01-3-2016 ORDER PER H.S. SIDHU, J.M. THESES APPEALS BY THE DEPARTMENT ARE DIRECTED AGAI NST THE SEPARATE ORDER BOTH DATED 16.4.2012 OF LD. CIT(A)-III, NEW D ELHI PERTAINING TO ASSESSMENT YEAR 2006-07 & 2007-08. SINCE THE ISSUE S ARE IDENTICAL IN BOTH THE APPEALS, HENCE, THESE APPEALS ARE BEING CO NSOLIDATED BY PASSING THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED IN ASSESSMENT YEAR 2006-07 R EADS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN CANCELLING THE PEN ALTY OF RS. 5,04,900/- IMPOSED BY THE AO U/S. 271(1)(C) OF THE I.T. ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT BENEF IT OF DECLARATION MADE U/S. 132(4) READ WITH EXPLANATION 5 OF SECTION 271(1)(C) OF THE I.T. ACT, 1961 IS AVAIL ABLE TO THE ASSESSEE EVEN IN RESPECT OF PREVIOUS YEAR WHICH HAS ITA NOS. 3306&3307/DEL/2012 2 ENDED BEFORE THE DATE OF SEARCH AND THE ADDITION INCOME HAS NOT BEEN DISCLOSED BY THE ASSESSEE IN H IS RETURN OF INCOME FILED PRIOR TO DATE OF SEARCH. 3. THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY / OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURS E OF THE APPEAL. 3. THE GROUNDS RAISED IN THE ASSESSMENT YEAR 2007-0 8 READS AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN CANCELLING THE PEN ALTY OF RS. 5,04,900/- IMPOSED BY THE AO U/S. 271(1)(C) OF THE I.T. ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT BENEF IT OF DECLARATION MADE U/S. 132(4) READ WITH EXPLANATION 5 OF SECTION 271(1)(C) OF THE I.T. ACT, 1961 IS AVAIL ABLE TO THE ASSESSEE EVEN IN RESPECT OF PREVIOUS YEAR WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND THE ADDITION INCOME HAS NOT BEEN DISCLOSED BY THE ASSESSEE IN H IS RETURN OF INCOME FILED PRIOR TO DATE OF SEARCH. 3. THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY / OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURS E OF THE APPEAL. 4. IN THESE CASES, NOTICE OF HEARING TO THE ASSESS EE WERE SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSES SEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT . KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AN D THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE ITA NOS. 3306&3307/DEL/2012 3 ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT A PPEALS EXPARTE QUA ASSESSEE. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORD S, WE FIND THAT REVENUE IN THE GROUNDS OF APPEAL BEFORE THE TRIBUNA L HAS CHALLENGED THE DELETION OF PENALTY OF RS. 5,04,900/- EACH IN BOTH THE APPEALS RAISED VIDE GROUND NO. 1, AS AFORESAID. 6. FROM THE ABOVE, WE FIND THAT THE TAX EFFECT IN BOTH THE REVENUES APPEALS IS LESS THAN RS.10,00,000/-, THEREFORE, BOT H THE DEPARTMENTS APPEALS ARE NOT MAINTAINABLE, IN VIEW OF THE CIRC ULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 ISSUED VIDE F.NO. 279/MISC. 142/200 7-ITJ (PT.) BY THE CBDT. FOR THE SAKE OF CONVENIENCE, TH E RELEVANT PARA NOS. 3 & 10 OF THE AFORESAID CBDTS CIRCULAR ARE REPRODUCE D AS UNDER:- 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 MATTERS 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 LIMITS PR ESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 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. 7. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, ITA NOS. 3306&3307/DEL/2012 4 THE DEPARTMENT SHOULD HAVE WITHDRAWN/ NOT PRESSED T HE PRESENT APPEAL, IN VIEW OF THE AFORESAID INSTRUCTIONS SINCE THE TA X EFFECT IN THE INSTANT APPEALS IS LESS THAN THE AMOUNT OF RS. 10 LACS, PR ESCRIBED IN THE ABOVE SAID CBDTS INSTRUCTIONS. 8. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HAVE WITHDRAWN/ NOT PRESSED THE INSTANT APPEALS BEFORE T HE TRIBUNAL. WE ARE ALSO OF THE VIEW THAT THE SAID INSTRUCTIONS ARE APP LICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN TRIBU NAL. ACCORDINGLY, BOTH THE REVENUES APPEAL ARE DISMISSED. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/03/2016. SD/- SD/- (L.P. SAHU) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 01/3/2016 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR