I.T.O., Ward-1(2), Aligarh V. Sh. Prashant Sharma, Aligarh

ITA 46/AGR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89212 (ITAT-AGRA)
• Duration Of Justice: 2 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-07-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 08-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BELU SINHA
• Assessee Lawyers: KM PRARTHANA JALAN
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO.46/AGRA/ 2013 ASSESSMENT YEAR: 2003-04 INCOME TAX OFFICER (AO), VS. SHRI PRASHANT SHARMA, WARD 1(2), ALIGARH. 2/475, CHANDANIYA, JYOTI NAGR. ALIGARH. (PAN AQXPS 7523 F). (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. BELU S INHA, SR. D.R. RESPONDENT BY : SHRI DEEPENDRA M OHAN, C.A. & KM. PRARTHANA JALAN, C.A. DATE OF HEARING : 23.07.2015 DATE OF PRONOUNCEMENT : 24.07.2015 ORDER PER INTURI RAMA RAO, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A), GHAZIABAD DATED 21.11.2012 FOR THE A.Y. 2003-04. 2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE NOTICE THAT SINCE THE TAX EFFECT IN THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) IS LESS THAN RS.4,00,000/-, THE SAME IS IN CONTRAVENTION OF C.B.D.T. CIRCULAR/INSTRUCTION NO.5/2014 DATED 10.07.2014 WHI CH FINDS STATUTORY FORCE UNDER THE PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, 1 961. THE SAME IS, THEREFORE, NOT ITA NO.46/AGRA/2013 A.Y. 2003-04 2 MAINTAINABLE, ALSO IN VIEW OF THE DECISIONS OF HON BLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS. SHYAM BIRI WORKS REPORTED IN (2015) 57 TAXMANN.COM 157 (ALLAHABAD) AND ORDER DATED 28.01.2015 OF ITAT, AHM EDABAD BENCH IN ITA NO.163/AHD/2014 IN THE CASE OF ACIT VS. SMT. BELABE N HITENBHAI SHAH. THE CLAUSE NO.3 OF THE SAID C.B.D.T. INSTRUCTION HAS MADE IT C LEAR THAT APPEAL BEFORE THE TRIBUNAL BY THE REVENUE WILL HENCEFORTH BE FILED WHERE TAX E FFECT EXCEEDS RS.4,00,000/-. 3. AS HELD BY THE AHMEDABAD DIVISION BENCH B, IN THE CASE OF BELABEN HITENBHAI SHAH (SUPRA), THIS MONETARY LIMIT APPLIES ON THE PENDING APPEALS AS WELL. THE RELEVANT OBSERVATIONS OF THE DIVISION BENCH, IN THE SAID CASE, ARE AS FOLLOWS :- 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. INSTRUCTION NO.5/2014 DATED10. 07.2014 HAS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEP ARTMENT BEFORE INCOME- TAX APPELLATE TRIBUNAL, HONBLE HIGH COURTS AND HON BLE SUPREME COURT. MONETARY LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS RS. 4 LACS; BEFORE HONBLE HIGH COURT RS. 10 LACS AND BEF ORE HONBLE SUPREME COURT RS. 25 LACS. HONBLE SUPREME COURT IN THE ORD ER DATED 25.03.2011 REFERRED TO ABOVE HAS HELD AS UNDER:- IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CA SES IS LESS THAN RS. 10.00 LACS. THE DEPARTMENT HAS RECENTLY IS SUED AN INSTRUCTION BEARING NO. 3/2011 DATED 09.02.2011, WH ICH 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, THE MONETARY LIMIT IN RESPECT OF APPEALS WHERE THE QUESTIONS OF LAW RAISED NEED NOT TO BE ANSWERED , HAS BEEN RAISED FROM RS. 4.00 LACS TO RS. 10.00 LACS. T HE DIVISION BENCH OF THIS COURT IN ITA NO. 89/1999 DEC IDED ON 28.01.2011 HAS ALREADY HELD THAT THE INSTRUCTION BE ARING NO. 5/2008 DATED 15.05.2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. THIS PRINCIPLE WOUL D THUS NATURALLY EQUALLY APPLY TO THE INSTANT INSTRUCTION BEARING ITA NO.46/AGRA/2013 A.Y. 2003-04 3 NO.3/2011 DATED 09.02.2011, AS WELL. THE TAX EFFECT BEING LESS THAN RS. 10.00 LACS, THE QUESTION OF LAW DOES NOT REQUIRE TO BE ANSWERED. THE APPEALS ARE DISPOSED OF ACCORDI NGLY. 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 UNDER:- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S. 4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBD T, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN RS . 10.00 LACS, 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 2ND AUGUST, I.T.A. NO. 163/AHD/14 A.Y. 05-06 [ACIT VS. SMT. BELABEN H. SHAH] PAGE 4 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOU LD ALSO APPLY TO PENDING CASES. 4.2 IN VIEW OF THE ABOVE, INSTRUCTION NO. 5/2014 DA TED 10.07.2014 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLLOWIN G THE PRECEDENT, IT IS HELD THAT THE APPEAL IS NOT MAINTAINABLE IN THE INS TANT CASE AS THE TAX EFFECT IS LESS THAN RS.4 LACS. ACCORDINGLY, IT IS H ELD THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 4. IN VIEW OF THE ABOVE DISCUSSIONS AND IN THE CIRC UMSTANCES AND FACTS OF THE CASE, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND THE SAME IS DISMISSED AS NOT MAINTAINABLE. 3. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 24.07.20 15) SD/- SD/- (G.C. GUPTA) (INTURI RAMA RAO) VICE PRESIDENT ACCOUN TANT MEMBER DATE: 24 TH JULY, 2015 PBN/* ITA NO.46/AGRA/2013 A.Y. 2003-04 4 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA