DCIT, New Delhi V. Sh. Jeevan Prakash Mittal, Delhi

ITA 3335/DEL/2010

• Counselvise Citation: 333520114 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-08-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 07-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH D DELHI ] BEFORE SHRI R. P. TOLANI, JM AND SHRI K. D. RA NJAN, AM I. T. APPEAL NO. 3335 (DEL) OF 2010. ASSESSMENT YEAR : 200203. DY. COMMISSIONER OF INCOME-TAX, SHRI JEEV AN PRAKASH MITTAL, C I R C L E : 13 (1), VS. JE EVAN VILLA, 1 ST FLOOR, 111DARYA GANJ, N E W D E L H I. D E L H I. P A N / G I R NO. AAG PM 2196 M. A N D C. O. NO. 211 (DEL) OF 2010. [ IN I. T. APPEAL NO. 3335 (DEL) OF 2010 ]. ASSESSMENT YEAR : 200203. SHRI JEEVAN PRAKASH MITTAL, DY. COMMISSIO NER OF INCOME-TAX, JEEVAN VILLA, 1 ST FLOOR, 111DARYA GANJ, VS. C I R C L E : 13 (1), D E L H I. N E W D E L H I. P A N / G I R NO. AAG PM 2196 M. ( APPELLANTS ) ( RESPONDENTS ) ASSESSEE BY : SHRI VED JAIN, C. A.; DEPARTMENT BY : MS. Y. KAKKAR, SR. D. R.; O R D E R. PER K. D. RANJAN, AM : THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE FOR ASSESSMENT YEAR 2 I. T. APPEAL NO. 3335 (DEL) OF 2010 A N D C. O. NO. 211 (DEL) OF 2010. 2002-03 ARISE OUT OF ORDER OF THE LD. CIT (APPEALS) -XVI, NEW DELHI. THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF, FOR THE SAKE OF CONVENIE NCE, BY THIS CONSOLIDATED ORDER. 2. THE RELEVANT GROUND OF APPEAL RAISED BY THE REVE NUE IS AS FOLLOWS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT (APPEALS) ERRED IN DELETING THE ADDITION OF RS.12,6 9,500/- MADE BY ASSESSING OFFICER ON ACCOUNT OF BOGUS SALE OF JEWELLERY, UNDE R SECTION 68 OF THE INCOME TAX ACT, 1961. 3. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT T HE RETURN OF INCOME FILED DECLARING INCOME OF RS.21,28,350/- WAS PROCESSED UNDER SECTION 143(1) O F THE I. T. ACT. SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATING WING, 14 7 PROCEEDINGS WERE INITIATED ON 26 TH MARCH, 2008. THE ASSESSING OFFICER COMPLETED THE ASSESSME NT TREATING THE INCOME FROM SALE OF JEWELLERY AT RS.12,69,500/- AS INCOME FROM UNDISCLOSED SOURCE S TREATING THE SAME AS BOGUS TRANSACTION. THE ASSESSEE ADMITTED INCOME ON SALE OF JEWELLERY U NDER THE HEAD CAPITAL GAINS. ON APPEAL THE ASSESSEE CHALLENGED RE-OPENING OF ASSESSMENT UNDER SECTION 147 AND ALSO ADDITION ON MERITS. THE LD. CIT (APPEALS) UPHELD THE RE-OPENING OF ASSE SSMENT. HOWEVER, ON MERITS RELYING ON VARIOUS DECISIONS, HELD THAT THE TRANSACTION OF SAL E OF JEWELLERY WAS GENUINE AND EVIDENCE COLLECTED BY THE REVENUE WAS NOT SUFFICIENT TO SHOW THAT THE SALE OF JEWELLERY WAS BOGUS. THE LD. CIT (APPEALS) DELETED THE ADDITION. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT (APPEALS) THE REVENUE FILED APPEAL AGAINST DELETION OF ADDITION ON ACCOUNT OF SALE OF JEWELLERY AND THE ASSESSEE HAS CHALLENGED RE-OPENING OF ASSESSMENT IN THE CROSS OBJECTION. 3 I. T. APPEAL NO. 3335 (DEL) OF 2010 A N D C. O. NO. 211 (DEL) OF 2010. 5. BEFORE US THE LD. AR OF THE ASSESSEE SUBMITTED T HAT THE TAX EFFECT IS LESS THAN RS.3,00,000/-. THEREFORE, IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 6.1 WE HAVE HEARD BOTH THE PARTIES. WE HAVE GONE TH ROUGH THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE LD. CIT (APPEALS). THE ASSESSEE HAS GIVEN COMPUTATION OF TAX EFFECT INVOLVED WHICH IS OF RS.2,78,164/-. THEREFORE, THE TAX EFFE CT IS LESS THAN RS.3,00,000/-. CBDT VIDE INSTRUCTION NO. 3/2011 DATED 9-02-2011 HAS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE INCOME-TAX APPELLATE TRIBUNAL , HONBLE HIGH COURT AND HONBLE SUPREME COURT. MONETARY LIMIT FOR FILING THE APPEA L BEFORE THE TRIBUNAL IS RS.3,00,000/-; BEFORE HONBLE HIGH COURT RS.10,00,000/- AND BEFORE HONBL E SUPREME COURT RS.25,00,000/-. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA. NO. 128/2008 DATED 3/03/2011 HAS HELD AS UNDER :- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS.4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASE S WHERE THE TAX EFFECT IS LESS THAN RS.10,00,000/- ARE NOT TO BE ENTERTAIN ED. THIS COURT IN THE CASE OF CIT, DELHI-III VS. M/S. P. S. JAIN & CO. BEING ITA. NO. 179/1991 DECIDED ON 02 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO THE PENDING CASES . 6.2 IN VIEW OF DECISION OF HONBLE DELHI HIGH COURT , IT IS CLEAR THAT INSTRUCTION NO. 3/2011 DATED 9/02/2011 WILL APPLY TO ALL PENDING APPEALS. SINCE THE TAX EFFECT TAX EFFECT INVOLVED IN THE APPEAL OF REVENUE IS OF RS.2,78,164/- WHICH IS LE SS THAN RS.3,00,000/-, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. DELHI RACE CLUB LTD.(SUPRA), THE APPEAL FILED BY THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. 4 I. T. APPEAL NO. 3335 (DEL) OF 2010 A N D C. O. NO. 211 (DEL) OF 2010. 7. SINCE WE HAVE HELD THAT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE DUE TO LOW TAX EFFECT, THE CROSS OBJECTION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS AND IS DISMISSED AS SUCH. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE A ND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 12 TH AUGUST, 2011. SD/- SD/- [ R. P. TOLANI ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12 TH AUGUST, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANTS. 2. RESPONDENTS. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.