ITO, Khatima V. Shri Krishna Kumar Agarwal Prop., Khatima

ITA 3611/DEL/2015

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4253 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 04-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI G.D.AGRAWAL, HONBLE PRESIDENT & SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.-3611/DEL/2015 ( ASSESSMENT YEAR: 2011-12) ITO MANDI PARISAR, PILIBHIT ROAD KHATIMA VS KRISHNA KUMAR AGARWAL PROP. M/S. KUMAOUN BRICK FIELD KHATIMA PAN : AFQPA1977B ASSESSEE BY NONE REVENUE BY SMT. APARNA KARAN, SR. DR ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL IS FILED BY THE DEPARTMENT AGAINST ORDE R DATED 20.03.2015 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), II, DEHRADUN FOR ASSESSMENT YEAR 2011-12 . 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 REVENUE. DATE OF HEARING 09 . 10 .201 8 DATE OF PRONOUNCEMENT 10 . 10 .201 8 2 ITA N O. 3611/DEL/2015 3. AFTER PERUSING THE MATERIALS AVAILABLE ON RECORD , WE FIND THAT THE AMOUNT DISPUTED BEFORE US 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 WHY SUCH A CIRCULAR IS NOT APPLICABLE TO THE FACTS OF THE CASE. WE ALSO FIND THAT THE CIRCULAR MAKES IT VERY CLEAR THA T THE REVISED MONETARY LIMITS SHALL APPLY RETROSPECTIVELY TO PEND ING APPEALS ALSO. WE FIND THAT THE CIRCULAR IS BINDING ON THE T AX AUTHORITIES. HENCE, WE HOLD THAT THE APPEAL OF THE REVENUE DESER VES TO BE DISMISSED IN TERMS OF LOW TAX EFFECT VIDE CIRCULAR NO. 3/2018 DATED 11.07.2018. 3.1 HOWEVER, WE ALSO NOTE THAT VIDE CBDTS INSTRU CTIONS 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 AMENDE D 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 3 ITA N O. 3611/DEL/2015 (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). (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 US, WE ARE 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 WILL NOT BE IN TRUE SPIRIT OF THE CIRCULAR. ACCORDINGLY, WE 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 OPEN COURT ON 10.10.2018 SD/- SD/- (G.D.AGRAWAL) (SUDHANSHU SR IVASTAVA) PRESIDENT JU DICIAL MEMBER DATED: 10.10.2018 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 4 ITA N O. 3611/DEL/2015 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 10.10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10.10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 10.10.2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 10.10.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 10.10.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 10.10.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 10.10.2018 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