ITO, New Delhi V. M/s. Niksum India (P) Ltd., New Delhi

ITA 4585/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86969 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 24-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 14-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJHA SENIOR
• Assessee Lawyers: NUPUR MANGLA
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI GEORGE GEORGE K, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4585/DEL./2011 ASSESSMENT YEAR : 2008-09 ITO, WARD 13 (2), VS. M/S. NIKSUN INDIA (P) LTD. , NEW DELHI. FLAT NO.1104, SANCHAR VIHAR, CGHS LTD., PLOT NO.15, SECTOR 4, DWARKA, NEW DELHI 110 078. (PAN : AABCN1438R) (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. NUPUR MANGLA, CA REVENUE BY : SHRI P. DAM KANUNJHA, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF THE CIT (APPEALS)- XVI, NEW DELHI DATED 16.06.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. AT THE TIME OF HEARING, THE LD. AR SUBMITTED THA T THE TOTAL RETURNED INCOME WAS RS.15,74,343/- AND THE ASSESSED INCOME WAS RS.22,46 ,381/-. THEREFORE, THE TAX ON THE DIFFERENTIAL INCOME OF RS.6,72,038/- @ 30.9% WORKS OUT TO RS.2,07,660/- WHICH IS BELOW THE MONETARY LIMIT PRESCRIBED FOR FILING DEPA RTMENTAL APPEAL. THE ASSESSMENT YEAR IN THE APPEAL IS 2008-09. THE TAX EFFECT ON T HE DELETED ADDITION IS LESS THAN THE THRESHOLD LIMIT, I.E. RS.4 LACS. THE APPEAL HAS BE EN FILED ON 14.10.2011. 2 ITA NO.4585/DEL/2011 3. 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 EF FECT IS LESS THAN RS.4.00 LAKH. WE FIND SUPPORT FROM THE DECISION OF HONBLE SUPREME COURT DATED 25.03.2011 IN ITA NOS. 3 TO 5/2010. LD. DR FOR THE REVENUE SUBMITTED THAT I NSTRUCTION NO. 5/2014 IS NOT APPLICABLE 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 FAVOUR OF THE REVENUE. 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH TH E MATERIAL AVAILABLE ON RECORD. INSTRUCTION NO.5/2014 DATED 10.07.2014 H AS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE INCOM E-TAX APPELLATE TRIBUNAL, HONBLE HIGH COURTS AND HONBLE SUPREME COURT. MONETARY LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS RS.4.00 LAKH; BEFORE HONBLE HIGH COURT RS. 10.00 LAKH AND BEFORE HONBLE SUPREME COURT RS. 25.00 LAKH. HO NBLE SUPREME COURT IN THE ORDER DATED 25.03.2011 REFERRED TO ABOVE HAS HELD AS U NDER:- IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CASES IS LESS THAN RS. 10.00 LACS. THE DEPARTMENT HAS RECENTLY 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, T HE 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 LAC S TO RS. 10.00 LACS. THE DIVISION BENCH OF THIS COURT IN ITA NO. 89/1999 DECIDED ON 28.01.2011 HAS ALREADY HELD THAT THE INSTRUCTION BEARING NO. 5/2008 DATED 15.05.2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. THIS PRINCIPLE WOULD THUS NATURALLY EQUALLY APPLY TO THE INSTANT INSTRUCTIO N BEARING NO.3/2011 DATED 09.02.2011, AS WELL. THE TAX EFFECT BEING LESS THAN RS. 3 ITA NO.4585/DEL/2011 10.00 LACS, THE QUESTION OF LAW DOES NOT REQUIRE TO BE ANSWERED. THE APPEALS ARE DISPOSED OF ACCORDINGLY. 4.1 HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008 DATED 03.03.2011 HAS HELD AS UND ER:- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS. 4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL I N THOSE CASES WHERE THE TAX EFFECT IS LESS THAN RS. 10.00 LAC S, 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 PENDIN G CASES. 4.2 IN VIEW OF THE ABOVE, INSTRUCTION NO. 5/2014 DATED 10.07.2014 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLLOWING 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. 5. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS DISMISSED WITHOUT GOING INTO THE MERITS. ORDER PRONOUNCED IN OPEN COURT ON THIS 25 TH DAY OF FEBRUARY, 2015. SD/- SD/- (GEORGE GEORGE K) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 25 TH DAY OF FEBRUARY, 2015 TS 4 ITA NO.4585/DEL/2011 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.