ITO, New Delhi V. Sh. Sagar Sharma, Delhi

ITA 3908/DEL/2013

• Counselvise Citation: 390820114 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 23-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 19-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR SENIOR
• Assessee Lawyers: T R TALWAR
• Keywords: Tax effect
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.3908/DEL./2013 (ASSESSMENT YEAR : 2005-06) ITO, WARD 21 (3), VS. SHRI SAGAR SHARMA, NEW DELHI. T-111, SHIVAJI COLONY, NARELA, DELHI 110 040. (PAN : CHHPS8223F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI T.R. TALWAR, ADVOCATE REVENUE BY : SHRI B.R.R. KUMAR, SENIOR DR O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF THE CIT (APPEALS)-XXII, NEW DELHI DATED 19.02.2013 FOR THE ASSESSMENT YEAR 2005-06. 2. IN THIS CASE, NO RETURN OF INCOME WAS FILED. TH E ASSESSING OFFICER RECEIVED THE INFORMATION FROM CIT (CIB), NEW DELHI THAT THE ASSESSEE HAS DEPOSITED IN CASH IN HIS SAVING BANK ACCOUNT A SUM OF RS.12,50,000/- MAINTAINED WITH CORPORATION BANK. SUBSEQUENTLY, NO TICE U/S 142(1) OF THE INCOME-TAX ACT, 1961 WAS ISSUED FIXING THE CASE FOR 29.10.2007 BY THE ITA NO.3908/DEL./2013 2 DO/ITO, WARD-4, ROHTAK, HARYANA. AFTER RECEIVING TH E CASE ON TRANSFER FROM DO/ITO, WARD-4, ROHTAK, HARYANA, NOTICE U/S 14 7/148 WAS ISSUED ON 02.05.2008. ANOTHER NOTICE U/S 142(1) ALONGWITH QUE STIONNAIRE / 143(2) WAS ISSUED ON 07.07.2008 AND 21.08.2009 FIXING THE CASE FOR 23.07.2008 AND 05.09.2009 RESPECTIVELY. ON THESE DATES ALSO TH E ASSESSEE DID NOT ATTEND NOR FILED ANY WRITTEN REPLY OR AN APPLICATIO N FOR ADJOURNMENT. NOTICE U/S 142(1) AND FINAL OPPORTUNITY LETTER ISSUED TO T HE ASSESSEE ON 09.10.2009 FIXING THE CASE FOR 21.10.2009. IN RESPONSE TO THIS NOTICE, SH. SANJEEV NANDA, CA ATTENDED THE CASE ON 12.10.2009 AND CASE ADJOURNED TO 21.10.2009. ON 21/10/2009, SH. SANJIV NANDA, CA ATT ENDED AND WAS ASKED TO FURNISH THE DETAILS AS PER ORDER SHEET ENTRY DAT ED 21.10.2009 AND CASE WAS ADJOURNED TO 29.10.2009. ON THIS DATE NOBODY AT TENDED THE CASE NOR ANY WRITTEN REPLY FILED BY THE ASSESSEE. ANOTHER FI NAL OPPORTUNITY WAS OFFERED TO THE ASSESSEE VIDE THIS OFFICE LETTER DAT ED 13.11.2009 ALONGWITH A NOTICE U/S 142(1), SPECIFICALLY ASKING HIM TO EXPLA IN THE SOURCE OF CASH DEPOSIT OF RS.12,50,000/- IN HIS BANK ACCOUNT WITH THE CORPORATION BANK POSITIVELY BY 20.11.2009. THE ASSESSEE THIS TIME TO O FAILED TO AVAIL THE LAST OPPORTUNITY OFFERED TO HIM. SINCE THE ASSESSEE DID NOT FILE ANY REPLY/EXPLANATION WITH REGARD TO THE SOURCE OF THE ABOVE DEPOSIT OF RS.12,50,000/- IN HIS BANK ACCOUNT WITH THE CORPORA TION BANK AND THIS BEING A TIME BARRING CASE, ASSESSMENT OF THE ASSESS EE COMPLETED AS PER MATERIAL AVAILABLE ON RECORD. ASSESSING OFFICER AS SESSED THE INCOME AT ITA NO.3908/DEL./2013 3 RS.12,50,00/-. THE CIT (A) DELETED THE ADDITION VI DE PARAS 8 TO 8.8 OF HIS ORDER. 3. THE ASSESSMENT YEAR IN THE APPEAL IS 2005-06. T HE TAX EFFECT ON THE DELETED ADDITION IS LESS THAN THE THRESHOLD LIMIT, I.E. RS.4 LACS. THE APPEAL HAS BEEN FILED ON 19.06.2013. 4. WE FIND THAT THE TAX EFFECT IN THIS CASE IS L ESS THAN RS.4 LACS. AS PER THE RECENT CBDT INSTRUCTION NO.5/2014 DATED 10. 07.2014, THE REVENUE IS NOT PERMITTED TO FILE APPEAL BEFORE THE TRIBUNAL IF THE TAX EFFECT IS LESS THAN RS.4.00 LAKH. WE FIND SUPPORT FROM THE DECISI ON OF HONBLE SUPREME COURT DATED 25.03.2011 IN ITA NOS. 3 TO 5/2010. LD . DR FOR THE REVENUE SUBMITTED THAT INSTRUCTION NO. 5/2014 IS NOT APPLIC ABLE FOR THE APPEALS FILED PRIOR TO ISSUE OF THE SAID INSTRUCTIONS. IT IS ALSO SUBMITTED THAT THE FULL BENCH OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. VIRENDRA CONSTRUCTION CO., 239 CTR 1, HELD THAT REVISED MONETARY LIMITS ARE NOT APPLICABLE TO THE PENDING APPEALS, AND IT IS IN FA VOUR OF THE REVENUE. 5. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH TH E MATERIAL AVAILABLE ON RECORD. INSTRUCTION NO.5/2014 DATED 10.07.2014 HAS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE D EPARTMENT BEFORE INCOME-TAX APPELLATE TRIBUNAL, HONBLE HIGH COURT S AND HONBLE ITA NO.3908/DEL./2013 4 SUPREME COURT. MONETARY LIMIT FOR FILING THE AP PEAL BEFORE THE TRIBUNAL IS RS.4.00 LAKH; BEFORE HONBLE HIGH COURT RS. 10.0 0 LAKH AND BEFORE HONBLE SUPREME COURT RS. 25.00 LAKH. HONBLE S UPREME COURT IN THE ORDER DATED 25.03.2011 REFERRED TO ABOVE HAS HELD AS UNDER:- IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CASES IS LESS THAN RS. 10.00 LACS. THE DEPARTMENT HAS R ECENTLY ISSUED AN INSTRUCTION BEARING NO. 3/2011 DATED 09.02.2011, WHICH IS IDENTICAL TO ITS EARLIER INSTRUCTION BEARING NO. 5/2008 DATED 15.05.2008 EXCEPT THAT IN SO FAR AS THE HIGH COURT IS CONCERNED, THE MONETARY LIMIT IN RESPECT OF APPEALS WHERE THE QUESTIONS OF LAW R AISED NEED NOT TO BE ANSWERED, HAS BEEN RAISED FROM RS. 4.00 LACS TO RS. 10.00 LACS. THE DIVISION BENCH OF TH IS COURT IN ITA NO. 89/1999 DECIDED ON 28.01.2011 HAS A LREADY HELD THAT THE INSTRUCTION BEARING NO. 5/2008 D ATED 15.05.2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. THIS PRINCIPLE WOULD TH US NATURALLY EQUALLY APPLY TO THE INSTANT INSTRUCTIO N BEARING NO.3/2011 DATED 09.02.2011, AS WELL. THE TAX EF FECT BEING LESS THAN RS. 10.00 LACS, THE QUESTION OF L AW DOES NOT REQUIRE TO BE ANSWERED. THE APPEALS ARE DI SPOSED OF ACCORDINGLY. 5.1 HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008 DATED 03.03.2011 HA S HELD AS UNDER:- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS. 4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LE SS THAN RS. 10.00 LACS, ARE NOT TO BE ENTERTAINED. THIS COURT IN THE CASE OF CIT, DELHI-III VS. M/S P .S. JAIN & CO., BEING ITA NO. 179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. ITA NO.3908/DEL./2013 5 5.2 IN VIEW OF THE ABOVE, INSTRUCTION NO. 5/2014 DATED 10.07.2014 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLL OWING THE PRECEDENT, IT IS HELD THAT THE APPEAL IS NOT MAINTAINABLE IN THE INSTANT CASE AS THE TAX EFFECT IS LESS THAN RS.4 LACS. ACCORDINGLY, IT IS HELD THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 6. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS DISMISSED WITHOUT GOING INTO THE MERITS. ORDER PRONOUNCED IN OPEN COURT ON THIS 23 RD DAY OF DECEMBER, 2014. SD/- SD/- (I.C. SUDHIR) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 23 RD DAY OF DECEMBER, 2014 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.