ITO, New Delhi V. Shri Gautam Murgai, New Delhi

ITA 4403/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77740 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 28-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 19-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: VK SABHARWAL
• Keywords: Tax effect
• Section: 260A

Judgement Text

ITA NO.4400/D/2013 & OTHERS ASSTT.YEAR: 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER ITA NO. 4400/DEL/2013 ASSESSMENT Y EAR: 2004-05 ITA NO. 4401/DEL/2013 ASSESSMENT Y EAR: 2005-06 ITA NO. 4403/DEL/2013 ASSESSMENT Y EAR: 2007-08 ITA NO. 4404/DEL/2013 ASSESSMENT Y EAR: 2008-09 INCOME TAX OFFICER, VS SHRI GAUTAM MURGAI, WARD-44(3), ROOM NO. 210, B- 53, SOUTH EXTENSION, D-BLOCK, DR. S.P. MUKERJEE CIVIC CENTRE, PART-2, NEW DELHI. J. N. MARG, NEW DELHI. (PAN: AAGPM4791A) (APPELLANT) (RESPOND ENT) APPELLANT BY: SHRI SATPAL SINGH, SR. DR RESPONDENT BY: SHRI V. K. SABHARWAL , ADV. O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THE ABOVE CAPTIONED APPEALS HAVE BEEN FILED BY THE DEPARTMENT AGAINST THE CONSOLIDATED ORDER OF THE CIT(A)-XXX, N EW DELHI DATED 25.06.2013 IN APPEAL NO. 2466, 2465, 2362, 2382. 3 382, 3381 & 3380/11- 12 FOR AY 2003-04 TO 2008-09 RESPECTIVELY. ITA NO.4400/D/2013 & OTHERS ASSTT.YEAR: 2004-05 2 2. WE HAVE HEARD ARGUMENTS OF BOTH THE PARTIES AND CAREFULLY PERUSED THE RECORD. LD. COUNSEL OF THE ASSESSEE SUBMITTED A C OPY OF THE DECISION OF ITAT DELHI BENCH I IN ITA NO. 1640/D/2011 DATED 8 TH JUNE 2011 AND SUBMITTED THAT THE APPEALS PERTAINING TO AY 2004-05 , 2005-06, 2007-08 AND 2008-09 HAVE BEEN FILED IGNORING THE FACT THAT THE TAX EFFECT IN THESE APPEALS IS BELOW RS. 3 LAKH AND AS PER REVISED INSTRUCTION OF CBDT NO. 3 DATED 9.2.2011, THE APPEALS BEFORE THE TRIBUNAL SHOULD NO T BE FILED WHEREIN TAX EFFECT IS LESS THAN RS. 3 LAKH. THE DR FAIRLY ACCE PTED THAT TAX EFFECT IN THESE APPEALS IS LESS THAN RS. 3 LAKH. 3. IN THE DECISION OF ITAT DELHI BENCH I IN ITA N O. 1640/DEL/2011 (SUPRA), IT HAS BEEN OBSERVED AND HELD THAT WHERE T HE TAX EFFECT IS LESS THAN RS. 3 LAKH, THE APPEAL OF THE DEPARTMENT IS NOT MA INTAINABLE AS PER CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9.2.2011. THE RELEVANT OPERATIVE PART OF THIS ORDER READS AS UNDER:- 4. WE HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME, WE ARE OF THE VIEW THAT THE DEPARTMENTAL APPEAL DESERVES TO B E DISMISSED. IT IS SEEN THAT THE JURISDICTIONAL HIGH COURT OF DELHI IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. I N ITA NO.128/2008, DATED 3 RD MARCH, 2011, HAS HELD AS UNDER:- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS.4,65,860/-. AS PER RECENT GUIDELINES OF THE CBD T, ITA NO.4400/D/2013 & OTHERS ASSTT.YEAR: 2004-05 3 APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS, ARE NOT BE ENTERTAINED. THIS COURT IN THE CASE OF COMMISSIONER OF INCOME-TA X-III V. M/S. P.S. JAIN AND CO. BEING NO.179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 4.1 IN THE FACTS OF THE PRESENT CASE ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROUNDS OF APPEAL BY THE DEPA RTMENT IS LESS THAN RS.3 LAKHS AND AS PER REVISED INSTRUCT ION OF THE CBDT NO.3 DATED 9.2.2011 WHEREIN THE CBDT HAS REVIS ED THE FILING LIMITS FOR APPEAL FILED BEFORE THE TRIBU NAL, HIGH COURT AND SUPREME COURT AS UNDER:- BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS.3 LA KHS, APPEALS U/S 260A OF THE IT ACT BEFORE THE HONBLE HIGH COURT : RS. 10 LAKHS AND BEFORE THE HONBLE SUPREME COURT : RS. 25 LAKHS 4.2 SINCE IN THE PRESENT CASE THE ABOVE REVISED IN STRUCTION IS FULLY APPLICABLE IN VIEW OF THE JUDGMENT OF THE HONBLE DELHI HIGH COURT (SUPRA), HENCE IN OUR OPINION THE REVENUES APPEAL IS NOT MAINTAINABLE IN VIEW OF THE SAID CIRCULAR OF THE CBDT. REFERENCE MAY ALSO BE MADE T O THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN TH E CASE OF CIT VS. ASHOK KUMAR MANIBHAI PATEL & CO. (2009) 317 ITR 386 (MP). 4.3 WE FURTHER FIND THAT IT IS A SETTLED LAW THAT T HE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE . THIS POSITION WAS CONFIRMED BY THE APEX COURT IN TH E CASE OF COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATI ON LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIP S EXAMINED THE EARLIER DECISIONS OF THE APEX COURT WI TH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID D OWN THAT WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUND BY IT AND CANNO T BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRARY TO THE TERMS OF THE STATUTE. THE APPEAL UNDER CONSIDE RATION ITA NO.4400/D/2013 & OTHERS ASSTT.YEAR: 2004-05 4 HAS CERTAINLY BEEN FILED CONTRARY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9.2.2011. 4. IN VIEW OF ABOVE, RESPECTFULLY FOLLOWING THE ABO VE DECISION OF THE TRIBUNAL IN THE PRESENT APPEALS, WE HOLD THAT THE A PPEALS FILED BY THE DEPARTMENT ARE NOT MAINTAINABLE AND THE SAME DESERV E TO BE DISMISSED AND WE DISMISS THE SAME IN LIMINE. 5. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.5.2014. SD/- SD/- (S.V. MEHROTRA) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 29TH MAY 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. COMMISSIONER OF INCOME TAX(A) 4. CIT. 5. DR BY ORDER ASSTT. REGISTRAR