ITO, New Delhi V. Sh. Surinder Kumar Gupta, Delhi

ITA 4396/DEL/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3486 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 17-04-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 14-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 5(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO. 4396/DEL/2012 ASSESSMENT YEAR: 2005-06 ITO, WARD 35(4) VS. SH. SURINDER KUMAR GUPTA, NEW DELHI 109, SHRESHTHA VIHAR, DELHI 110 092 (PAN: AAPPG1409E) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. N.K. BANSAL, SR. D R ASSESSEE BY : SH. GAURAV JAIN, ADV . ORDER PER H.S. SIDHU, JM THE DEPARTMENT HAS FILED THIS APPEAL WHICH IS EMAN ATE FROM THE ORDER DATED 16.5.2012 OF LD. CIT(A)-XXVII, NEW DELHI PERTAININ G TO ASSESSMENT YEAR 2005-06. THE GROUNDS RAISED IN THE REVENUES APPEAL READS AS UNDER:- 1. THE ORDER OF THE LD. CIT(A) IS BAD IN LAW AND IS AGAINST THE FACTS OF THE CASE. 2. THE CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY AMOUNTING TO RS. 5,38,600/- MADE BY THE AO UNDER SECTION 271(1) (C) OF THE ACT BY NOT APPRECIATING THE FACT THAT THE DISCLOSURE OF INCOME WAS THE RESULT OF SEARCH OPERATION ON THE ASSESSEE AND NOT VOLUNTARY. 3. ON THE FACTS AND CIRCUMSTANCSE OF THE CASE, THE LD. CIT(A) HAS ERRED IN IGNORING THE FACT THAT PROVISION OF EXPLANATION 5(1 ) AND EXPLANATION 5(2) OF THE SECTION 271(1)(C) OF THE ACT ARE NOT APPLICABLE IN THIS CASE. 4. WHETHER THE DISCLOSURE MADE IN RESPONSE OF NOTI CE U/S. 153A((1)(A) IN RESPECT OF EARLIER ASSESSMENT YEAR I.E. AY 2005-06 OVER AND ABOVE ALREADY RETURNED INCOME AFTER THE SEARCH OPERATION HELD ON 11.1.2007 CAN BE SAID VOLUNTARY IN NATURE. 2 5. THE CIT(A) ERRED IN LAW AND ON FACTS BY IGNORIN G THAT IF IN PURSUANT TO SEARCH OPERATION, PENALTY IS NOT LEVIED FOR UNEART HING OF ADDITIONAL INCOME DETECTED DURING A SEARCH, IT WOULD BE AN OPEN INCEN TIVE TO ALL TO CONCEAL THEIR INCOME TILL SUCH TIME IT IS DETECTED BY THE DEPART MENT. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 2. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSE SSEE HAS STATED TAX EFFECT IN THE REVENUES APPEAL IS LESS THAN THE PRESCRIBED LIMIT OF RS. 10 LACS AS FIXED BY THE CBDT. THEREFORE, HE REQUESTED THAT THE APPEAL OF THE REVE NUE MAY BE DISMISSED ON THIS ACCOUNT. 3. ON THE OTHER HAND, LD. DR DID NOT CONTROVERT THE CONTENTION RAISED BY THE LD. COUNSEL OF THE ASSESSEE, BUT HE RELIED UPON THE ORD ER OF THE AO. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. AFTER PERUSING THE RECORDS, WE FIND THAT TAX EFFECT IN THE REVENUES A PPEAL IS BELOW THE LIMIT OF RS. 10 LACS, AS FIXED BY THE CBDT AND, THEREFORE, THE DEPARTMEN TS APPEAL IS NOT MAINTAINABLE, IN VIEW OF THE CIRCULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 ISSUED VIDE F.NO. 279/MISC. 142/2007-ITJ (PT.) BY THE CBDT. FOR THE SAKE OF CO NVENIENCE, THE RELEVANT PARA NOS. 3 & 10 OF THE AFORESAID CBDTS CIRCULAR ARE REPRODUCED AS UNDER:- 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HE REUNDER: S NO APPEALS IN INCOME -TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 2 BEFORE HIGH COURT 20,00,000/- 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 PRESCR IBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 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 AB OVE MAY BE 3 WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERA TIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 5. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME- TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, T HEREFORE, THE DEPARTMENT SHOULD HAVE WITHDRAWN/ NOT PRESSED THE PRESENT APPEAL, IN VIEW OF THE AFORESAID INSTRUCTIONS SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN THE A MOUNT OF RS. 10 LACS, PRESCRIBED IN THE ABOVE SAID CBDTS INSTRUCTIONS. 6. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HAVE WIT HDRAWN/ NOT PRESSED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WE ARE ALSO OF THE VIE W THAT THE SAID INSTRUCTIONS ARE APPLICABLE FOR THE PENDING APPEALS AND APPEALS TO B E FILED HENCEFORTH IN TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. 7. IN THE RESULT, THE REVENUES APPEAL STANDS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/04/2017. SD/- SD/- ( ANADEE NATH MISSHRA ) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17/04/2017 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR