ITO, New Delhi V. Sh. Suresh Kumar Mittal, Delhi

ITA 5034/DEL/2011

• Counselvise Citation: 503420114 RSA 2011
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 29-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 11-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSLENDRA TIWARI
• Keywords: Tax effect
• Section: 12

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 5034/DEL/2011 (ASSESSMENT YEAR: 2007 - 08 ) ITO, WARD - 43(3), ROOM NO. 408, 4 TH FLOOR, MAYUR BHAWAN, NEW DELHI VS. SURESH KUMAR MITTAL, TP - 11, PITAMPURA, DELHI PAN:AAAPM4219R (APPELLANT) (RESPONDENT) CO NO. 01/DEL/2012 (IN ITA NO. 5034/DEL/2011 ) (ASSESSMENT YEAR: 2007 - 08) SURESH KUMAR MITTAL, TP - 11, PITAMPURA, DELHI PAN:AAAPM4219R VS. ITO, WARD - 43(3), ROOM NO. 408, 4 TH FLOOR, MAYUR BHAWAN, NEW DELHI (APPELLANT) (RESPONDENT) REVENUE BY : SHRI KAUSLENDRA TIWARI, SR. DR ASSESSEE BY: SHRI DEEPAK BANSAL, CA DATE OF HEARING 25 /09/2017 DATE OF PRONOUNCEMENT 1 3 /1 2 /2017 O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS IS AN APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - XXX, NEW DELHI DATED 23.08.2011 FOR THE ASSESSMENT YEAR 2007 - 08. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. WHETHER THE CIT(A) WAS CORRECT IN LAW IN DELETING THE ADDITION OF RS. 500000/ - U/S 10(10C) OF THE INCOME TAX ACT, 1961 BY IGNORING THE BOARDS INSTRUCTION ISSUED VIDE FNO. 200/34/2009 - ITA - ,1 DATED 06.10.2009 UNDER SUBJECT EXIST OPTION SCHEME OF STATE BANK OF INDIA, STATE BANK OF PATIALA AND ASSOCIATES BANK NOT ELIGIBLE FOR EXEMPTION U/S 10(10C) OF THE ACT. 2. WHETHER THE CIT(A) HAS NOT HELD THE INSTRUCTION OF THE CBDT ILLEGAL/ ULTRA VIRES BY IGNORING THE SAME AND THEREBY THE LIMIT OF THE TAX EFFECT FOR FI LING APPEALS IN THE CASE IS NOT RELEVANT. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN CROSS OBJECTION NO. 01/DEL/2012: - 1. BECAUSE THE DEPARTMENTAL APPEAL IS BAD IN LAW AS WELL AS ON FACTS AND THEREFORE IS LIABLE TO BE DISMISSED. ITO VS.SURESH KUMAR MITTAL ITA NO. 5034/DEL/2011 (ASSESSMENT YEAR: 2007 - 08) PAGE | 2 2. BECAU SE THE LD ASSESSING OFFICER HAS FAILED TO APPRECIATE THE ACTUAL LITERATURE OF THE EXIST OPTION/ VOLUNTARY RETIREMENT SCHEME OF THE STATE BANK OF INDIA. 3. BECAUSE THE LD COMMISSIONER OF INCOME TAX (APPEALS) AFTER HAVING GONE THROUGH THE FACTS OF THE CASE OF THE ASSESSEE AND A CATENA OF JUDICIAL PRECEDENTS ON THE MATTER, FOUND THE CLAIM OF THE ASSESSEE TO BE LAWFUL. 4. AT THE OUTSET OF THE HEARING ITSELF, THE LD. DR BROUGHT TO OUR ATTENTION THAT CBDT VIDE CIRCULAR NO.21/2015 DATED 10TH DECEMBER, 2015 HAS DEC IDED THAT THE REVENUE WOULD NOT PREFER AN APPEAL BEFORE THE TRIBUNAL IF THE TAX EFFECT IS LESS THAN RS.10 LAKHS. THEREFORE, HE PLEADED THAT THE APPEAL OF THE REVENUE BE DECIDED AS PER THE INSTRUCTION OF THE CBDT. LD AR ALSO REITERATED SAME FACTS. 5. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND PERUSED THE MATERIAL. WE FIND THAT THE CBDT VIDE CIRCULAR DATED 10.12.2015 HAS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL, HONBLE HIGH COURTS AND HONBL E SUPREME COURT. THE RELEVANT PARA OF THE AFORESAID CIRCULAR IS REPRODUCED AS UNDER : - 3. HENCEFORTH, APPEALS/SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER : - SL.NO. APPEALS IN INCOME - TAX MATTE RS 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 MONETARY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 6. WE FIND THAT THE TAX EFFECT INVOLVES IN THE APPEAL OF THE REVENUE IS BELOW RS.10 LAKHS. THERE IS NO DISPUTE THAT THE BOARDS INSTRUCTIONS OR DIRECTIONS ISSUED TO THE INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHDRAWN/NOT PRESSED THE PRESENT APPEAL IN VIEW OF THE AFORESAID INSTRUCTION SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN THE AMOUNT OF RS.10 LAK HS. 7. IN VIEW OF THE ABOVE, CIRCULAR NO.21 DATED 10.12.2015 W ILL APPLY TO THE PRESENT APPEAL . THEREFORE THE PRECEDENT, IT IS HELD THAT THE APPEAL IS NOT MAINTAINABLE IN THE INSTANT CASE AS THE TAX EFFECT IS LESS THAN RS.10 LAKHS. ACCORDINGLY, IT IS HELD THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 8. AS THE APPEAL OF THE REVENUE IS DISMISSED THE CROSS OBJECTION OF THE ASSESSEE BECOMES INFRACTUOUS AND THEREFORE, SAME IS DISMISSED. ITO VS.SURESH KUMAR MITTAL ITA NO. 5034/DEL/2011 (ASSESSMENT YEAR: 2007 - 08) PAGE | 3 9. IN THE RESULT THE APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 3 / 1 2 /2017. - S D / - - S D / - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 / 1 2 /2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI