ITO, Gurgaon V. Sh. Naresh, Gurgaon

ITA 3374/DEL/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6678 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 22-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 02-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SMT. BEENA A. PILLAI, JUDICIAL MEMBER AND SH. PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 3374/DEL/2014 (ASSESSMENT YEAR 2009-10) APPELLANT BY : SH. RAJESH KUMAR, SR. DR. RESPONDENT BY : NONE. DATE OF HEARING : 22.02.2017 DATE OF PRONOUNCEMENT: 27.02.2017 ORDER PER BEENA A. PILLAI, JM: 1. THE PRESENT APPEAL HAS BEEN FILED BY DEPARTMENT (HEREINAFTER REFERRED TO AS 'THE REVENUE') AGAINST ORDER DATED 28.03.2014 PASSED BY LD. CIT(A)-II, FARIDABAD FOR ASSESSMENT YEAR 2009-10. 2. PERUSAL OF THE AFORESAID APPEAL FILED BY THE REVEN UE APPARENTLY SHOWS THAT THE SAME IS HAVING LOW TAX EF FECT AS PER CBDT CIRCULAR NO.21/2015 DATED 10 TH DECEMBER 2015 VIDE WHICH THE REVENUE HAS BEEN DIRECTED NOT TO PRE FER ANY APPEAL IN CASE THE TAX EFFECT IS LESS THAN RS.10,00 ,000/- AND THIS ITO WARD -2(1), GURGAON VS. NARESH S/O SH. PRAHLAD SINGH, VPO KHERKI DAULA GURGAON, GIR/PAN: AEYPN1905M (APPELLANT) (RESPONDENT) ITA NO. 3374/DEL/2014 (AY2009-10) PAGE 2 OF 4 FACTUAL POSITION HAS BEEN FAIRLY CONCEDED BY THE LD . D.R. THE LD. A.R. CONTENDED THAT THE APPEAL OF THE REVENUE M AY BE DISMISSED IN THE LIGHT OF CBDT CIRCULAR (SUPRA). 3. WE HAVE HEARD PARTIES ON THE ISSUE IN CONTROVERSY AND PERUSED THE MATERIAL ON RECORD. PERUSAL OF CBDT CIR CULAR (SUPRA) SHOWS THAT MONETARY LIMIT FOR FILING THE AP PEAL BY THE DEPARTMENT BEFORE THE TRIBUNAL, HON'BLE HIGH COURT AND HON'BLE SUPREME COURT HAS BEEN REVISED AND THE RELE VANT PORTION OF THE AFORESAID CIRCULAR IS EXTRACTED AS U NDER: '3. HENCEFORTH, APPEALS/SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONE TARY LIMITS GIVEN HEREUNDER: S. NO . APPEALS IN INCOME-TAX MATTERS MONETARY LIMIT (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 C ASES 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 WITHDRA WN / NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERA TIVE AT THE TIME WHEN SUCH APPEAL WAS FILED.' ITA NO. 3374/DEL/2014 (AY2009-10) PAGE 3 OF 4 4. THE CONTENTION OF LD. SR. D.R. THAT HE NEEDS SOME TIME TO PROCURE THE REPORT FROM THE ASSESSING OFFICER TO WORK OUT THE TAX EFFECT, IS NOT TENABLE BECAUSE WHEN APPAREN TLY, THE APPEAL IN QUESTION IS COVERED UNDER CBDT CIRCULAR NO.21/2015 DATED 10 TH DECEMBER 2015 (SUPRA), THE REVENUE CANNOT IMPORT THE FACTS WITHIN THE KNOWLEDGE OF THE ASSESSING OFFICER TO FURTHER PROLONG THE MATTER. HOWEVER, IN CASE ANY FACT WHICH IS OTHERWISE NOT ON RECORD WARRANTS THE RESTORATION OF THE PRESENT APPEAL, THE REVENUE IS AT LIBERTY TO APPROACH THE TRIBUNAL UNDER RELEVANT PROVISIONS OF LAW. 5. IN VIEW OF THE CBDT CIRCULAR NO.21 DATED 10.12.201 5 HAVING RETROSPECTIVE EFFECT AND WHAT HAS BEEN DISCU SSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE AFORE SAID APPEAL IS NOT MAINTAINABLE BECAUSE OF LOW TAX EFFECT I.E. LESS THAN RS.10,00,000/- HENCE, THE AFORESAID APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED HAVING BEEN BECOME INFRUCTUOUS. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE IS WITHDRAWING THE CO FILED. 6. THE CO FILED BY THE ASSESSEE IS DISMISSED AS WITHD RAWN. IN THE RESULT BOTH, APPEAL AND THE CO ARE DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH FEBRUARY, 2017. SD/- SD/- ( PRASHANT MAHARISHI ) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 27.02.2017 @M!T ITA NO. 3374/DEL/2014 (AY2009-10) PAGE 4 OF 4 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI) S.NO. DETAILS DATE 1. DRAFT DICTATED ON DRAGON 22.02.2017 2. DRAFT PLACED BEFORE AUTHOR 23 . 02 .2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO THE SR. PS/PS 6 . KEPT FOR PRONOUNCEMENT 7 . FILE SENT TO BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO HEAD CLERK 9. DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER