ITO, New Delhi V. M/s. Mukesh Malik, Delhi

ITA 460/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7485 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 03-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 27-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UC DUBEY
• Keywords: Unexplained cash credit; Peak credit; Tax effect
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADI N. MISHRA, ACCOUNTANT MEMBER ITA NO. 460/DEL/2014 ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER, VS. MUKESH MALIK, WARD 34(2) 8247-A, NAVEEN SHAHDARA, ROOM NO. D-4, DELHI 32 VIKAS BHAWAN, NEW DELHI 2 (PAN: AIIPM0007H)) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. UC DUBEY, SR. DR RESPONDENT BY : NONE DATE OF HEARING : 03-8-2016 DATE OF ORDER : 03-8-2016 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 26.11.2013 OF LD. CIT(A)-XXVII, NEW DELHI PERTAININ G TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THAT THE ORDER OF THE LD. CIT (APPEAL) IS BAD IN LAW AND NOT IN CONSO NANCE WITH FACTS OF THE CASE'. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD.CIT (APPEAL) ERRED IN RESTRICTING THE ADDITION TO RS.4,39,736/- OUT OF THE TOTAL ADDITION MADE BY AO AMOUNTING TO RS. 14,58,500/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 69 OF THE I.T. ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(APPEAL) HAD ERRED IN GRANTING RELIEF OF RS. 15,29,697/- OUT OF TOTAL ADDITION OF ITA NO. 460/DEL/2014 2 RS. 20,36,697/- ON ACCOUNT OF CREDIT CARDS PAYMENTS . 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(APPEAL) HAD ERRED IN CONSIDERING THAT THE ASSESSEE FAILED T O FURNISH THE NECESSARY DETAILS/EVIDENCE DURING THE COURSE OF ASSESSMENT PR OCEEDINGS. 5 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(APPEAL) HAD ERRED IN DELETING IGNORING THE STATUTORY PROVIS ION OF SECTION 69 OF THE ACT AND GRANTED RELIEF RELYING UPON THE PEAK CREDIT THEORY, NOT EVOLVED BY THE LEGISLATURE. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THAT THE LD.CIT(A) WHILE RELYING UPON PEAK CREDIT THEORY, ERRED IN LAW AS WELL AS IN THE FACTS THE ASSESSEE FAILED TO ESTABLISH THE NEXUS BETWEEN THE CREDIT & DEBIT ENTRIES OF BANK ACCOUNTS. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THAT THE LD.CIT(A) HAD ERRED IN PASSING THE ORDER WITHOUT AFFORDING OP PORTUNITIES TO THE AO AND ALSO WITHOUT CONSIDERING THE ORDER PASSED BY TH E AO. 8. THE APPELLANT CRAVES TO ADD, ALLOW OR AMEND ANY OR ALL THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF TH E APPEAL. 2. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR HIS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FA CTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INV OLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE W OULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THERE FORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEAR ING THE LD. DR AND PERUSING THE RECORDS. ITA NO. 460/DEL/2014 3 3. FROM THE ABOVE, WE FIND THAT THE TAX EFFECT IN THE REVENUES APPEAL IS LESS THAN RS.10,00,000/-, THEREFORE, THE DEPARTMENTS AP PEAL 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. FO R THE SAKE OF CONVENIENCE, THE RELEVANT PARA NOS. 3 & 10 OF THE AFORESAID CBDT S CIRCULAR ARE REPRODUCED AS UNDER:- 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY L IMITS GIVEN HEREUNDER: 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 MONETA RY LIMITS PRESCRIBED 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/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTI ONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEA L WAS FILED. 4. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORI TIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHDRAWN/ NOT PRESSED THE P RESENT APPEAL, IN VIEW OF ITA NO. 460/DEL/2014 4 THE AFORESAID INSTRUCTIONS SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN THE AMOUNT OF RS. 10 LACS, PRESCRIBED IN THE ABOVE SAID CBDTS INSTRUCTIONS. 5. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HA VE WITHDRAWN/ NOT PRESSED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WE ARE ALS O OF THE VIEW THAT THE SAID INSTRUCTIONS ARE APPLICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/08/2016. SD/- SD/- (ANADI N. MISHRA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 03/8/2016 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR