ITO, BHILWARA V. Shri Kamal Seksaria, BHILWARA

ITA 478/JODH/2014

• Counselvise Citation: 47823314 RSA 2014
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: VARUN BANSAL SHRI GAUTAM MUTHA
• Keywords: Tax effect
• Section: 154

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL : JODHPRU BENCH : JODHPUR BEFORE SHRI R.C. SHARMA, HONBLE ACCOUNTANT MEMBER (S.M.C.) ITA NO. 478 /JODH/201 4 (ASSTT. YEAR 20 0 8 - 0 9 ) THE INCOME TAX OFFICER V S SHRI KAMAL SEKSARIA WARD - 1 , PROP. SYSTEM MARKETING SERVICES BHILWARA 14, 2 ND FLOOR, BHAIRAV COMPLEX PUR ROAD, BHILWARA PAN NO. AFMPS 5474 H (APPELLANT ) (RESPONDENT ) A SSESSEE BY : SHRI VARUN BANSAL SHRI GAUTAM MUTHA DEPARTMENT BY : SHRI R OOP CHAND , JCIT DATE OF HEARING : 13 /0 7 /2015 DATE OF PRONOUNCEMENT : 13 /0 7 /2015 O R D E R THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF THE CIT(A ) , UDAIPUR DATED 07 .0 8 .2014 FOR A.Y. 200 8 - 0 9 IN THE MATTER PASSED U/S 154 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT, FOR SHORT]. 2 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. 3. IN THIS APPEAL THE REVENUE IS AGGRIEVED FOR DELETING THE ADDITION OF RS. 2,02,978/ - . FROM THE RECORD I FOUND THAT THE TAX EFFECT IN THE APPEAL FIL ED BY THE REVENUE IS LESS THAN RS. 4 LAKHS. 4 . AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETRO SPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTR UCTIONS OR DIRECTIONS TO OTHER INCOME - TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), AN INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PREC LUDE SUCH 3 AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF ( A ) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR ( B ) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEN D THAT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ] 4 5 . IT IS NOT IN DISPUTE THAT THE BOARDS IN STRUCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS T HAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 6 . IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO. 5 OF 2014 DATED 1 0.0 7.2014 , BY WHICH THE CBDT HAS REV ISED THE MONETARY LIMIT TO RS. 4 ,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 7 . K EEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 201 4 DATED 10 .0 7 .201 4 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, I AM OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, THE FOLLOWING DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT FORTIFY MY VIEW : - 5 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 3. CIT V VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H)(FB) 8 . SIMILARLY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER DATED 03.03.2011 BY FOLLOWING T HE EARLIER ORDER DATED 02.08.2010 IN ITA NO.179/1991 IN THE CASE OF CIT DELHI - III V. M/S. P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 9 . FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT, IT IS CLEAR THAT TH E INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO.3/11 DATED 09.02.2011 ISSUED BY T HE CBDT ARE APPLICABLE FOR THE PENDING 6 CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4.00 LAKH S. 10 . IN VIEW OF THE ABOVE, WITHOUT G OING INTO MERITS OF THE CASE, I DISMISS THE APPEAL FILED BY THE REVENUE. 1 1 . IN THE RESULT, THE APPEAL OF THE REVENUE STAND S DISMISSED. ORDER PRONOUN CED IN THE OPEN COURT ON 13 TH JULY , 2015. SD/ - [R.C. SHARMA] ACCOUNTANT MEMBER DATED : 14 TH /0 7 /2015 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 ITO CONCERNED 5 DR, ITAT, JODHPUR. ASSISTANT REGISTRAR