ITO, GONDA V. Shri Suhail Ahmad Niyazi, GONDA

ITA 522/LKW/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62153 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-06-2012
• Assessment Year: misc
• Appeal Filed On: 08-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B : LUCKNOW BEFORE SHRI S. K. YADAV, JUDICIAL MEMBER AND SHRI MEHAR SINGH , ACCOUNTANT MEMBER I.T.A. NO S . 522 & 523 /LKW/1 1 ASSESSMENT YEAR S : 2003 - 04 & 04 - 05 INCOME TAX OFFICER, VS. SHRI SUHAIL AHMAD NIYAZI, GONDA. VILL CHISTIPUR, KHORAHASA, GONDA. PAN:AIJPA9107D (APPELLANT) (RESPONDENT) APPELLANT B Y : SMT.SWATI RATAN, SR.D.R. RESPONDENT BY : SHRI A. P. SINHA, ADVOCATE DATE OF HEARING : 2 6 / 06 /201 2 DATE OF PRONOU NCEMENT : 27/06/2012 ORDER PER MEHAR SINGH; A.M.: THESE TWO APPEALS ARE FILED BY THE DEPARTMENT AGAINST THE ORDER OF CIT(A) - I I, LUCKNOW EACH DATED 0 3 /0 6 /201 1 RELEVANT TO ASSESSMENT YEAR S 2003 - 2004 AND 2004 - 2005 . 2. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE HAS STATED THAT THE TAX EFFECT IN TH ESE APPEAL S IS LESS THAN THE PRESCRIBED MONETARY LIMIT , SO THE D EPARTMENT OUGHT NOT TO HAVE FILED TH ESE APPEAL S IN VIEW OF THE INSTRUCTIONS ISSUED BY C.B.D.T. 3. THE LEARNED D. R., COULD NOT CONTROVERT THE ABOVE FACT. 2 4. AFTER CONSIDERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE 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, INSTRUCTIONS 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 PRECLUDE SUCH 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 CONTEND 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 TRIB UNAL 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 CA SE. (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. ] 5. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE SE APPEAL S IN VIEW OF THE ABOVE MENTIONED 3 SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL, SO TH ESE APPEAL S ARE DISMISSED. 6. IN THE RESULT, THE APPEAL S ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 27/06/2012 ) SD/. SD/. ( S. K. YADAV ) ( MEHAR SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27/06/2012 *SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR