ITO, Ward-1(1), Noida V. Amit Zaroo, Noida

ITA 3483/DEL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8885 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: AMIT ZAROO
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER ITA NO.-3483/DEL/2018 ( ASSESSMENT YEAR: 2009-10) ITO, WARD-1(1), ROOM NO. 303, A-2/D, AAYAKAR BHAWAN, SECTOR-24, NOIDA VS SH. AMIT ZAROO, P 172, ATS VILLAGE, SECTOR-93A, NOIDA 201304 PAN : AAAPZ4921F ASSESSEE BY SHRI AMIT ZAROO, ASSESSEE REVENUE BY SHRI S.L.ANURAGI, SR. DR ORDER PER N.S.SAINI, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE DEPARTMENT AGAINST ORDE R DATED 25.09.2017 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, NEW DELHI FOR ASSESSMENT YEAR 2009-10. 2. AT THE OUTSET, IT IS BROUGHT TO OUR NOTICE THAT THE QUANTUM INVOLVED IN THIS CASE BEING LESS THAN RS. 20 LACS, SQUARELY FALLS WITHIN THE AMBIT OF CIRCULAR NO. 3/2018 DATED 11.07 .2018 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES PRESCRIBING TH E TAX EFFECT FOR PREFERRING APPEALS BEFORE TRIBUNAL BY THE REVEN UE. 3. AFTER PERUSING THE MATERIALS AVAILABLE ON RECORD , I FIND THAT THE AMOUNT DISPUTED BEFORE ME IS BELOW THE TAX EFFE CT LIMIT PRESCRIBED BY CBDT VIDE CIRCULAR NO. 3/2018 DATED 1 1.07.2018 FOR PREFERRING APPEALS BEFORE TRIBUNAL BY THE REVEN UE. ON PERUSAL OF THE CIRCULAR NO. 3/2018 DATED 11.07.2018 AND THE MATERIALS AVAILABLE ON RECORD, LD. SR. DR COULD NOT POINT OUT AS TO HOW AND DATE OF HEARING 27.12.2018 DATE OF PRONOUNCEMENT 27.12.2018 2 ITA N O. 3483/DEL/2018 WHY SUCH A CIRCULAR IS NOT APPLICABLE TO THE FACTS OF THE CASE. I ALSO FIND THAT THE CIRCULAR MAKES IT VERY CLEAR THA T THE REVISED MONETARY LIMITS SHALL APPLY RETROSPECTIVELY TO PEND ING APPEALS ALSO. I FIND THAT THE CIRCULAR IS BINDING ON THE TA X AUTHORITIES. HENCE, I HOLD THAT THE APPEAL OF THE REVENUE DESERV ES TO BE DISMISSED IN TERMS OF LOW TAX EFFECT VIDE CIRCULAR NO. 3/2018 DATED 11.07.2018. 3.1 HOWEVER, I ALSO NOTE THAT VIDE CBDTS INSTRUC TIONS DATED 20.08.2018 BEARING F. NO. 279/MISC.142/2007-ITJ (PT ), THERE HAS BEEN AN AMENDMENT TO PARA 10 OF THE CIRCULAR NO. 3 OF 2018 DATED 11.07.2018 WHEREIN THE SAID PARA 10 HAS BEEN AMENDED AS UNDER:- 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EF FECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 A BOVE OR THERE IS NO TAX EFFECT. (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS B EEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN INCOME/UNDISCLOSED FOREIGN ASSETS (INCLUDING FINANC IAL ASSETS)/UNDISCLOSED FOREIGN BANK ACCOUNT. (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES S UCH AS CBI/ ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). 3 ITA N O. 3483/DEL/2018 (F) CASES WHERE PROSECUTION HAS BEEN FILED BY THE D EPARTMENT AND IS PENDING IN THE COURT. 3.2 AFTER GOING THROUGH THE RECORDS BEFORE ME, I AM OF THE OPINION THAT THE APPEAL IS NOT COVERED BY ANY OF TH E AFORESAID EXCEPTIONS AS ENUMERATED IN THE AFORESAID AMENDMENT TO THE INSTRUCTIONS AND, THEREFORE, DELAYING THE DISPOSAL OF THE APPEALS BY WAITING FOR THE REPORT FROM THE FIELD OFFICERS W ILL NOT BE IN TRUE SPIRIT OF THE CIRCULAR. ACCORDINGLY, I DEEM IT FIT TO TREAT THE APPEAL AS DISMISSED WITH THE LIBERTY TO THE DEPARTMENT TO SEEK A RECALL BY FILING A MISC. APPLICATION BEFORE US IN CASES THE D EPARTMENTS APPEAL FALL IN ANY OF THE ABOVE EXCEPTIONS. ACCORDI NGLY, IN VIEW OF THE CBDTS CIRCULAR NO. 3 OF 2018 DATED 11.7.2018, THE CAPTIONED APPEALS BY THE REVENUE ARE DISMISSED IN LIMINE. 4. IN THE FINAL RESULT, THE APPEAL OF THE REVENU E STAND DISMISSED. ORDER PRONOUNCED IN THE COURT ON 27 TH DECEMBER, 2018 AT NEW DELHI. SD/- (N.S.SAINI) ACCOUNTANT MEMBER DATED: 27.12.2018 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY 4 ITA N O. 3483/DEL/2018 ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 27.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 27.12.2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 27.12.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 27.12.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 27.12.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 27.12.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER