DCIT, New Delhi V. Sh. Naresh Nandan Prasad, New Delhi

ITA 3505/DEL/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8890 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 26-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 31-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHANANJAY SINGH
• Assessee Lawyers: P DAM KANUNJHA SENIOR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI GEORGE GEORGE K, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO. 3505 /DEL./201 3 ASSESSMENT YEAR : 200 9 - 10 DCIT, CIRCLE 40 ( 1 ), VS. SH. NARESH NANDAN PRASAD NEW DELHI. 2 - MEENA BAGH, MAULANA AZAD ROAD, NEW DELHI (PAN : AKSPP 5738 N ) (APPELLANT) (RESPONDENT) DATE OF HEARING : 26.02.2015 DATE OF PRONOUNCEMENT : 27 .02.2015 APPELLANT BY : SHRI DHANANJAY SINGH , AR RESPONDENT BY : SHRI P. DAM KANUNJHA, SENIOR DR ORDER PER : GEORGE GEORGE K., JUDICIAL MEMBER : 1. THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF THE CIT (APPEALS) - X XX , NEW DELHI DATED 20 .0 3 .201 3 FOR THE ASSESSMENT YEAR 200 9 - 10 . 2. THE ASSESSEE HAD FILED AN ADJOURNMENT APPLICATION. HOWEVER, IT WAS NOTICED THAT TAX EFFECT IN THE APPEAL I S BELOW THE MONETARY LIMIT PRESCRIBED FOR FILING DEPARTMENTAL APPEAL. THE INSTRUCTION NO.5/14 DATED 10.07.2014 MANDATES THAT THE TAX EFFECT SHOULD BE ABOVE 4 LAKHS IN A PARTICULAR CASE, WHEN REVENUE FILES AN APPEAL TO THE ITAT, (UNLESS THE CASE COME WITHIN THE AMBIT OF EXCEPTION 2 ITA NO. 3505 / DEL/2013 CIRCUMSTANCE/SITUATION MENTIONED IN THE CIRCULAR). THE RECENT ORDER OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. SHRI CHETAN PRAKASH MITTAL (ITA NO.3323/DEL/2010 DATED 13.11.2014) HAD HELD THAT INSTRUCTION NO.5/14 IS APPLICABLE TO PENDING CASES. THE RELEVANT FINDING OF THE TRIBUNAL READS AS FOLLOWS: (PARA 5) WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL IN THE CASE OF DEPUTY COMMR. OF INCOME TAX VS. SUSHILA SARAOGI (SUPRA) AFTER CONSIDERING THE PRECEDENTS ON THE SUBJECT HELD INSTRUCTION NO.5/14 ISSUED BY THE CBDT ON 10.07.2014 IS APPLICABLE TO THE PENDING APPEALS. THE TRIB UNAL FOLLOWED THE DICTUM LAID DOWN THE JUDGMENTS OF THE VARIOUS HIGH COURTS INCLUDING THE TWO JUDGMENTS OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. M/S P.S. JAIN & CO. IN ITA NO.179/1991 DATED 2.8.2010 AND IN THE CASE OF COMMISSIONER OF INCOME TAX VS. DELHI RACE CLUB LTD. DATED 3.3.2011. IN VIEW OF THE ORDER OF THE TRIBUNAL IN THE CASE OF DEPUTY COMMISSIONER OF INCOME TAX VS. SUSHILA SARAOGI WHICH HAVE ELABORATELY CONSIDERED THE IDENTICAL ISSUE, WE HOLD THAT INSTRUCTION NO.5/2014 ISSUED BY THE CBDT ON 10.07.2014 IS APPLICABLE TO THE PENDING APPEALS. IN THE INSTANT CASE, THE TAX EFFECT BEING BELOW RS.4 LACS, WITHOUT GOING INTO THE ISSUE ON MERIT, WE DISMISS THE APPEAL OF THE REVENUE IN LIMINEE. IT IS TO BE MENTIONED THAT LD. DR WAS UNABLE TO POINT OUT ANY EXCEPTIONAL CIRCUMSTANCES/SITUATION (MENTIONED IN BOARD INSTRUCTION NO.5/2014) FOR FILING AN APPEAL DESPITE THE MONETARY LIMIT BEING BELOW THE PRESCRIBED LIMIT. 3. IN VIEW OF THE COORDINATE BENCH ORDER OF THE TRIBUNAL (SUPRA), WE HOLD THAT INSTRUCTION NO.5/2014 ISSUED BY THE CBDT ON 10.07.2014 IS APPLICABLE TO THE PENDING APPEALS. IN THE INSTANT CASE, SINCE THE TAX EFFECT IS BELOW RS.4 LAKHS, WITHOUT GOING INTO THE ISSUE ON MERIT, WE DISMISS THE APPEAL OF THE REVENUE IN LIMINE. FURTHER IT IS TO BE MENTIONED THAT LD. DR WAS UNABLE TO POINT OUT ANY 3 ITA NO. 3505 / DEL/2013 EXCEPTIONAL CIRCUMSTANCES/SITUATION (MENTIONED IN BOARD INSTRUCTION NO.5/14) FOR FILING AN APPEAL, DESPITE THE TAX EFFECT BEING BELOW THE PRESCRIBED LIMIT. 4. IN THE RESULT, APPEAL OF THE REVEN UE IS DISMISSED IN LIMINE. ORDER PRONOUNCED IN OPEN COURT ON THIS 2 7 T H DAY OF FEBRUARY, 2015. S D / - S D / - (B.C. MEENA) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 2 7 T H DAY OF FEBRUARY, 2015 AKS. COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI