DCIT, New Delhi V. M/s Sunrise Properties, New Delhi

ITA 4680/DEL/2009

• Counselvise Citation: 468020114 RSA 2009
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 22-11-2011
• Assessment Year: 1996-1997
• Appeal Filed On: 11-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MOHANTY
• Keywords: Tax effect; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G DELHI BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO. 4680(DEL)/2009 ASSESSMENT YEAR: 1996-97 DEPUTY COMMISSIONER OF INCOME SUNRI SE PROPERTIES, TAX, CIRCLE 31(1), NEW DELHI. VS. 10 2, ANTRIKSH BHAWAN, 22, K.G. MARG, NEW DELHI. PAN: AABFS9996G (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. S. MOHANTY, DR RESPONDENT BY : SHRI SANJAY AGGARWAL, C.A. DATE OF HEARIN G: 22.11.2011 DATE OF PRONOU NCEMENT: 09.12.2011. ORDER PER K.G. BANSAL : AM THE ONLY GROUND TAKEN BY THE REVENUE IN THIS CA SE IS THAT THE LD. CIT(APPEALS) ERRED IN DELETING THE ADDITION MADE ON VARIOUS ACCOUNTS WITHOUT CONSIDERING THE FACT THAT THE ASSESSING OFFICER OFFERED NUMEROUS OPPORTUNITIES TO THE ASSESSEE FOR THE PURPOSE OF VERIFICATION OF ISSUES RELATING TO DISALLOWANCE IN DISPUTE IN THE COURSE OF ASSESSMENT MADE U/S 245 READ WITH SECTION 143(3) OF THE INCOME-TAX ACT, 1961, BUT THE SAME REMAINED UN-COMPLIED. ITA NO. 4680(DEL)/2009 2 2. THE LD. DR REFERRED TO THE FACT THAT THE A SSESSMENT WAS SET ASIDE TWICE BY THE TRIBUNAL. HOWEVER, EVEN IN TH E INSTANT PROCEEDINGS OPPORTUNITIES WERE GIVEN TO THE ASSESSEE WHICH W ERE NOT AVAILED OF. THEREFORE, THE AO MADE A TOTAL DISALLOWANCE OF RS . 10,95,476/- FROM VARIOUS HEADS OF EXPENSES. THE LD. CIT(APPEALS) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. IT IS AGITATED THAT IN VIEW OF COMPLETE FAILURE OF THE ASSESSEE TO MAKE ANY COMPLIANCE BEFORE THE AO, THE WHOLE OF THE ADDITION SHOULD HAVE BEEN SUSTAINED. 3. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT TAX EFFECT IN THIS CASE IS LESS THAN RS. 3.00 LA KH. THEREFORE, THE APPEAL OF THE REVENUE REQUIRES TO BE DISMISSED IN LIMINE. 4. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. THE DECISION OF HONBLE DELHI HIGH CO URT IN THE CASE OF CIT VS. P.S. JAIN & CO., (2011) 335 ITR 591 IS THAT LIMITS PRESCRIBED BY THE NEW CIRCULAR OF THE BOARD SHALL ALSO APPLY IN RESPECT OF PENDING APPEALS WHICH WERE FILED PRIOR TO SUCH CIRCULAR. IN VIEW THEREOF, THE APPEAL OF THE ITA NO. 4680(DEL)/2009 3 REVENUE IS LIABLE TO BE DISMISSED IN LIMINE. FOR T HE SAKE OF READY REFERENCE , THE JUDGMENT IS REPRODUCED BELOW:- HEARD MR. SANJEEV SABHARWAL, LEARNED COUNSEL FOR THE APPELLANT AND MR. B.N. GOSWAMI, LEARNED COUNSEL FOR THE RESPONDE NT. IT IS FAIRLY STATED BY MR. SANJEEV SABHARWAL, LEARNED COUNSEL F OR THE APPELLANT THAT THE TAX IMPACT WOULD BE RS. 1,80,000/-. IN CIT VS. ASHOK KUMAR MANIBHAI PATEL AND CO . (2009) 317 ITR 386 (MP), A DIVISION BENCH OF THE MADHYA PRADESH HIGH COURT HAS HELD AS THUS (PAGE 390): QUITE APART FROM THE ABOVE , WE MAY ALSO NOTE THAT THIS COURT IN THE CASE OF CWT VS. DR. AJAD KUMAR JAIN (HUF) , SAG AR (W.P. NO. 162 OF 1998) WHILE TAKING NOTE OF THE TAX IMPAC T AND PLACING RELIANCE ON THE DECISION RENDERED IN CIT VS. PITHWA ENGG. WORKS (2005) 276 ITR 519 (BOM) HAS OPINED THUS: 11. THE FACTUAL SCENARIO CAN BE PERCEIVE D FROM ANOTHER ASPECT. SUBMISSION OF MR. A.K. SHRIVASTAVA, LEARNED COUNSEL FOR THE RESPONDENT IS THAT THE TAX IMPACT IS RS. 52,565 AND, THEREFORE, AS PER THE CIRCULAR OF THE CBDT THE REFERENCE NEED NOT BE ADVERTED TO. A DIVISION BENCH OF THE HIGH COURT OF BOMBAY I N THE CASE OF CIT VS. PITHWA ENGG. WORKS, ( 2005) 276 ITR 519 ( BOM) IN PARA 6 EXPRESSED THE VIEW AS UNDER (PAGE 520) : THIS COURT CAN VERY WELL TAKE JUDICIAL NOTICE OF THE FACT THAT BY PASSAGE OF TIME MONEY VALUE HAS GONE DOWN, THE COST OF LITIGATION EXPENSES HAS GONE UP, THE ASSESSEES ON T HE FILE OF THE DEPARTMENTS HAVE INCREASED; CONSEQUENTLY THE BURDEN ON THE DEPARTMENT HAS ALSO INCREASED TO A TREMENDOUS EXTEN T. THE CORRIDORS OF THE SUPERIOR COURTS ARE CHOKED WITH HU GE PENDENCY OF CASES. IN THIS VIEW OF THE MATTER, THE BOARD HAS RI GHTLY TAKEN A DECISION NOT TO FILE REFERENCES IF THE TAX EFFECT I S LESS THAN RS. 2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN OUR VIEW, THE BOARDS CIRCULAR DT. 2 7 TH MARCH, 2000, IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED. THE DEPARTMENT IS NOT JUSTIFIED IN PROCE EDING WITH THE OLD REFERENCES WHEREIN THE TAX IMPACT IS MINIMAL. T HUS, THERE IS NO JUSTIFICATION TO PROCEED WITH DECADES OLD REFERENCE S HAVING NEGLIGIBLE TAX EFFECT.' ITA NO. 4680(DEL)/2009 4 JUDGED FROM BOTH ANGLES WE WOULD ANSWER TH E REFERENCE IN THE NEGATIVE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. KEEPING IN VIEW THE AFORESAID PRINCIPLE, WE ARE N OT INCLINED TO ANSWER THE PRESENT REFERENCE AND ACCORDINGLY THE SAME IS DIS MISSED. 5. IN THE RESULT, THE APPEAL IS DISMISSED. SD/- SD/- (RAJPAL YADAV) (K.G. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA COPY OF THE ORDER FORWARDED TO:- M/S SUNRISE PROPERTIES, NEW DELHI. DY. CIT, CIRCLE 31(1), NEW DELHI. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.