ACIT, New Delhi V. Mrs. Priyanka Tushar, New Delhi

ITA 3781/DEL/2010

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2988 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 06-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SAROHA
• Keywords: Retrospective amendment; Tax effect
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.L.P.SAHU, ACCOUNTANT MEMBER I.T.A .NO.-3781/DE L/2010 (ASSESSMENT YEAR-2006- 07) ACIT, CENTRAL CIRCLE-12, ROOM NO.330, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI (APPELLANT) VS PRIYANKA TUSHAR, B-102, THE NEW COSMOPOLITAN SOCIETY, CGHS, SECTOR-10, PLOT NO.33, DWARKA, NEW DELHI. PAN-ACYPT2788A (RESPONDENT) APPELLANT BY SH.A.K.SAROHA, CIT DR RESPONDENT BY SH.ROHIT GARG, CA ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AS SAILING THE CORRECTNESS OF THE ORDER DATED 14.05.2010 OF CIT(A) -I, NEW DELHI WHEREIN THE CORRECTNESS OF THE ADDITION OF RS.21,98,000/- DIREC TED BY THE CIT(A) HAS BEEN ASSAILED BY THE REVENUE PERTAINING TO 2007-08 ASSES SMENT YEAR. 2. THE LD. AR, SH. ROHIT GARG, CA INVITING ATTENTIO N TO THE LATEST CIRCULAR NO.21/2015 DATED 10 TH DECEMBER, 2015 OF CBDT AND POINTING THE GROUNDS RAISED SUBMITTED THAT THE APPEAL FILED BY T HE REVENUE IS NOT MAINTAINABLE AS THE TAX EFFECT INVOLVED IS LESS THA N RS.10 LACS. 3. SH. A. K.SAROHA, LD. CIT DR CONSIDERING THE GROU NDS AND THE ADDITIONS AT STAKE FOR THE REVENUE FAIRLY SUBMITTED THAT IN TERM S OF THE CBDT CIRCULAR NO.21/2015 DATED 10 TH DECEMBER 2015, THE CIT DR DID NOT OPPOSE THE SUBMISSIONS OF THE LD. AR. 4. IT MAY NOT BE OUT OF PLACE TO REFER TO SECTION 2 68A OF THE INCOME-TAX ACT, 1961 WHICH HAS BEEN INSERTED BY THE FINANCE ACT, 20 08 WITH RETROSPECTIVE EFFECT FROM 01.04.1999 WHICH MANDATES THE CBDT TO ISSUE NO TIFICATIONS AND CIRCULARS DATE OF HEARING 17.02.2016 DATE OF PRONOUNCEMENT 03.03.2016 I.T.A .NO.-3781/DEL/2010 PAGE 2 OF 3 AS CIRCULAR NO.21/2015 DATED 10TH DECEMBER, 2015 OF CBDT, WHICH HAS REVISED THE MONETARY LIMIT FOR FILING OF THE DEPARTMENTAL A PPEAL TO THE ITAT AT RS.10 LACS HAS BEEN ISSUED UNDER THE SAID PROVISIONS BY THE CB DT. THE RELEVANT PROVISION READS AS UNDER:- 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORI TY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISS UE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEA R; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER A SSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE OR DERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), IT SHALL N OT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENC E IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH A PPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DI RECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH S UCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL O R APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISIONS OF SUB-SECTIONS (2), (3) AND (4) SHA LL APPLY ACCORDINGLY.] 5. RELEVANT EXTRACTS (PARAS 1 TO 4) FROM THE AFORES AID CBDT CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 IS ALSO REPRODUCED HEREUND ER FOR READY REFERENCE: SUBJECT : REVISION OF MONETARY LIMITS FOR FI LING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL A ND HIGH COURTS AND SLP BEFORE SUPREME COURT MEASURES FOR REDUCING L ITIGATION REG. REFERENCE IS INVITED TO BOARDS INSTRUCTION NO 5/20 14 DATED 10.07.2014 WHEREIN MONETARY LIMITS AND OTHER CONDITIONS FOR FI LING DEPARTMENTAL APPEALS (IN INCOME-TAX MATTERS) BEFORE APPELLATE TR IBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT WERE SPECIF IED. 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE T HE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVE N HEREUNDER: S. NO APPEALS IN INCOME-TAX MATTER MONETARY LIMIT ( IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 2 BEFORE HIGH COURT 20,00,000/- I.T.A .NO.-3781/DEL/2010 PAGE 3 OF 3 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 MONETARY LIMITS PR ESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS IN TENDED TO BE FILED (HEREINAFTER REFERRED TO AS DISPUTED ISSUES). HOW EVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEAB ILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTERES T IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EF FECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 6. WE HAVE SEEN THAT THE MONETARY LIMITS HAVE BEEN MADE APPLICABLE RETROSPECTIVELY BY THE CBDT IN THE SAID CIRCULAR AS WOULD BE EVIDENT FROM THE FOLLOWING EXTRACT:- 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIB UNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE G OVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 7. IN VIEW OF THE ABOVE WHERE THE TAX EFFECT IS ADM ITTEDLY BELOW RS.10 LAC THE APPEAL FILED IS DISMISSED AS THE SAID CIRCULAR IS B INDING ON THE REVENUE. RELYING ON THE AFORESAID CIRCULAR THE DEPARTMENTAL APPEAL I N THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH IS DISM ISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 RD MARCH, 2016. SD/- SD/- (L.P.SAHU) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03/03/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTAN T REGISTRAR ITAT NEW DELHI