ITO, Meerut V. Sh. Pawan Kumar Mittal, Meerut

ITA 4281/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86932 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 05-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 07-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Keywords: Tax effect
• Section: 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F, NEW DELHI) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 4281/DEL/2012 ASSESSMENT YEAR : 2008-09 ITO, WARD 2(1), VS. SH. PAWAN KUMAR MITTAL, MEERUT S/O SHRI TEJPAL MITTAL, 74-A, NAVEEN MANDI, DELHI ROAD, MEERUT GIR / PAN:AIVPM0053G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIKRAM SAHAY, SR., DR RESPONDENT BY : NONE DATE OF HEARING : 05.03.2015 DATE OF PRONOUNCEMENT : 11.03.2015 ORDER PER T.S. KAPOOR, AM: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER OF LD. CIT(A), MEERUT DATED 01.05.2012. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN L AW IN DELETING THE ADDITIONS OF RS. 9,45,600/- MADE BY THE AO U/S 68 OF THE IT ACT, 1961 ON ACCOUNT OF UNEXPLAINED UNSECURED LOANS IGNO RING THE FACT THAT CREDIT WORTHINESS REMAINED UNPROVED, RATHER DI SPROVED AS ALLEGED LAND HOLDINGS OF CREDITORS / LENDERS WERE I NSUFFICIENT AND NO DETAILS OF SALES OF AGRICULTURAL PRODUCE PROVIDED, MISMATCH BETWEEN SIGNATURES OF ALLEGED CREDITORS/LENDERS AND SIGNATU RES ON ALL THE AFFIDAVITS APPEARED TO HAVE BEEN PUT BY ONE SINGLE PERSON AND ALLEGED CREDITORS/ LENDERS WERE NOT PRODUCED DESPITE SPECIF IC OPPORTUNITIES PROVIDED BY THE A.O. 2- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT (A) HAS ERRED IN LAW IN DELETING THE ADDITIONS OF R S.9,45,600/- MADE BY ITA NO.4281/DEL/2012 2 THE AO U/S 68 OF THE IT ACT, 1961 ON ACCOUNT OF UNP ROVED ALLEGED UNSECURED LOANS IGNORING THE FACT THAT CREDITWORTHI NESS OF SO CALLED LENDERS AND GENUINENESS OF TRANSACTION WAS NOT PROV ED ONUS FOR WHICH CLEARLY WAS UPON THE ASSESSEE IN WHICH HE HAD TOTAL LY FAILED. RELIANCE IS PLACED ON THE FOLLOWING CASE LAWS:- I. CIT VIS KORLAY TRADING CO. LTD. (CAL.) 232 ITR 820. II. 'KRISHAN KUMAR JHANB BLS ITO AND ANR (PUNJAB & HARYANA ) 17 DTR 249' III. M/S SEJAL INTERNATIONAL LTD V/S CIT MEERUT ( ALL.) APPEAL ` NO.306 OF 2010. IV. CIT VS DURGA PRASAD MORE, 82 ITR 540 (SC) V. CIT VS P. MOHNAKALA, 291 ITR 278 (SC) VI. CIT VS SUMATI DAYAL, 214, ITR 801 (SC) VII. ITO VS DIZA HOLDINGS PVT. LTD. 255 ITR 573 (KE RLA) 3- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT (A) HAS ERRED IN LAW IN DELETING THE DISALLOWANCES OF RS. 75,0001- MADE OUT OF SEVERAL EXPENSES CLAIMED IN THE P&L A/C BY THE A.O. IGNORING THAT ONLY PART AND INCOMPLETE VOUCHERS WER E PRODUCED BY THE ASSESSEE BEFORE HIM AND HENCE SUCH EXPENSES REMAINE D UNVERIFIABLE. 4- THAT THE APPELLANT CRAVES LEAVE TO ADD, MODIFY AND I OR DELETE ANY GROUND(S) OF APPEAL. 5- IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) MAY BE SET ASI DE AND THAT OF THE A.O. RESTORED. 3. NONE WAS PRESENT ON BEHALF OF ASSESSEE. HOWEVER WITH THE HELP OF LD.D.R., WE OBSERVED THAT TAX EFFECT IN THI S APPEAL IS LESS THAN RS.4,00,000/-, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONTAINED IN SECTION 268A OF THE INC OME TAX ACT, 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). 4. THE LD. D.R., ALTHOUGH SUPPORTED THE ORDER OF TH E ASSESSING OFFICER, BUT COULD NOT CONTROVERT THIS FACT THAT TA X EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/-. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. D.R . AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN ITA NO.4281/DEL/2012 3 INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIV E EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ 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 AUTHORI TY UNDER THE PROVISIONS OF THIS CHAPTER. 6. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTI ON NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REVISE D THE MONETARY LIMIT TO RS. 4,00,000/- FOR FILING THE AP PEAL BEFORE THE TRIBUNAL. 7. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE SAID PROVISIONS MENTION ED IN SECTION 268A OF THE ACT SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEA L. 8. THOUGH INSTRUCTION NO.5 DATED 10.07.2014 MENTION S THAT LIMIT OF RS.4,00,000/- WILL BE APPLICABLE FOR CSES FILED AFTER 10.07.2014 BUT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER D ATED 03.03.2011 BY FOLLOWING THE EARLIER ORDER DATED 02.08.2010 IN ITA NO.179/1991 IN THE CASE OF CIT DELHI-III V. M/S. P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. ITA NO.4281/DEL/2012 4 9. FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HI GH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIR CULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO.5/14 DATED 10.07.2014 ISSUED BY THE CBDT ARE APPLICABLE FOR TH E PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY T AX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4.00 LAKHS . 10. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 11. IN THE RESULT, APPEAL OF THE REVENUE STAND DISM ISSED. 12. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH, 2015. SD./- SD./- (DIVA SINGH ) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 11 TH MARCH, 2015 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO.4281/DEL/2012 5 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 5/3 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 9,9, SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER