ITO, Haridwar V. Shri Jagdish Lal, Haridwar

ITA 4206/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4088 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 10-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Unexplained cash credit; Depreciation; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D : NEW DELHI DELHI BENCH D : NEW DELHI DELHI BENCH D : NEW DELHI DELHI BENCH D : NEW DELHI BEFORE SHRI R.P.TOLANI, JM AND SHRI B.K.HALDAR, AM BEFORE SHRI R.P.TOLANI, JM AND SHRI B.K.HALDAR, AM BEFORE SHRI R.P.TOLANI, JM AND SHRI B.K.HALDAR, AM BEFORE SHRI R.P.TOLANI, JM AND SHRI B.K.HALDAR, AM ITA NO.4206/DEL/2010 ITA NO.4206/DEL/2010 ITA NO.4206/DEL/2010 ITA NO.4206/DEL/2010 ASSESSMENT YEAR : 2003 ASSESSMENT YEAR : 2003 ASSESSMENT YEAR : 2003 ASSESSMENT YEAR : 2003- -- -04 0404 04 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -I, I,I, I, HARDWAR, HARDWAR, HARDWAR, HARDWAR, UTTARAKHAND. UTTARAKHAND. UTTARAKHAND. UTTARAKHAND. VS. VS. VS. VS. SHRI JAGDISH LAL, SHRI JAGDISH LAL, SHRI JAGDISH LAL, SHRI JAGDISH LAL, NEW AWAS VIKA NEW AWAS VIKA NEW AWAS VIKA NEW AWAS VIKAS, NEW S, NEW S, NEW S, NEW HARDWAR. HARDWAR. HARDWAR. HARDWAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K.MONGA, DR. RESPONDENT BY : NONE. ORDER ORDER ORDER ORDER PER R.P.TOLANI, JM : PER R.P.TOLANI, JM : PER R.P.TOLANI, JM : PER R.P.TOLANI, JM : THE REVENUE IS IN APPEAL AGAINST THE ORDER OF CIT( A) DATED 22.6.2010 FOR THE AY 2003-04. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER:- 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE APPEAL OF ASSESSEE ON THE GROUND OF UNEXPLAINED CREDIT OF RS.4,00,000/- AS ADVANCE. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS OF T HE CASE IN DELETING THE DISALLOWANCE OF RS.1,51,501/- WITHOUT APPRECIATING THE FACT THAT THE ONUS TO SUBSTANTIATE THE CLAIM OF EXPENSES LIED ON THE ASSESSEE. 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS OF T HE CASE IN DELETING THE DISALLOWANCE ON ACCOUNT OF DEPRECIATION ON CAR AND SCOOTER WITHOUT APPRECIATIN G EXPRESS PROVISION OF SECTION 38(2) OF THE I.T.ACT. 3. NONE PUT IN APPEARANCE ON BEHALF OF THE ASSESSEE AT THE HEARING. WE PROCEED TO DISPOSE OF THE APPEAL OF THE REVENUE EX-PARTE AND IN THAT PROCESS, WE HAVE HEARD THE LEARNED DR AND HAVE GONE THROUGH THE RELEVANT MATERIAL AVAILABLE ON RECORD. ITA-4206/DEL/2010 2 4. IT IS FOUND THAT THE TAX EFFECT INVOLVED IN REVE NUES APPEAL IS LESS THAN RS. 3 LACS. AS PER CBDT INSTRUCTION NO. 1979 D ATED 27-3-2000; INSTRUCTION NO. 2 OF 2005 DATED 24-10-2005; INSTRU CTION NO. 3 DATED 9 TH FEBRUARY 2011, APPEALS BEFORE THE ITAT WOULD NOT B E MAINTAINABLE IF THE TAX EFFECT IS BELOW RS. 3 LACS. ADMITTEDLY THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS BELOW RS. 3 LAKHS, THEREFORE, IN VIEW OF THE INSTRUCTIONS OF THE CBDT, REFERRED TO ABOVE, THE DE PARTMENTAL APPEAL IS NOT MAINTAINABLE. IN ARRIVING AT SUCH CONCLUSION WE ARE ALSO FORTIFIED BY THE RATIO OF DECISIONS IN THE FOLLOWING CASES: (1) CIT VS. PRADEEP KUMAR GUPTA (2007) 207 CTR (DEL ) 115; (2) ACIT VS. SATISH CHAND JAIN (2006) 10 SOT 383 (D EL.); (3) ACIT VS. DOON VALLEY MOTORS (2006) 10 SOT 525 ( DEL.); (4) JCIT VS. DEV RAJ AGARWAL (2005) 92 TTJ (LUCKNOW ) 436; (5) ITA NO. 3839/D/04 & C.O. 28/DEL/07 ITO VS. M/ S M.J. WARE HOUSING (P) LTD.& VICE VERSA DATED 31-8-2007. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 12 TH MAY, 2011. SD/- SD/- (B.K.HALDAR) (B.K.HALDAR) (B.K.HALDAR) (B.K.HALDAR) (R.P.TOLANI) (R.P.TOLANI) (R.P.TOLANI) (R.P.TOLANI) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 12.05.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR