ACIT, New Delhi V. M/s 3 Com India Pvt. Ltd., New Delhi

ITA 5348/DEL/2010

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0086 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 02-06-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 29-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S TOMAR
• Assessee Lawyers: SYED NASIR ALI
• Keywords: Depreciation; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H, NEW DELHI BEFORE SH. GEORGE GEORGE K, JM AND SH. N. K. SAINI, AM ITA NO. 5348/DEL/2010 : ASSTT . YEAR : 2004-05 ACIT, CENTRAL CIRCLE-16(1), NEW DELHI VS 3 COM INDIA PVT. LTD. REGUS EROS CORPORATE TOWERS, LEVEL 15, NEHRU PLACE NEW DELHI PAN : AAACZ1256G (APPELLANT) (RESPONDENT) PAN NO. AAAPG3416E ASSESSEE BY : SH. SYED NASIR ALI, CITDR REVENUE BY : SH. VISHAL KALRA, ADV. & SH. S.S. TOMAR, ADV. DATE OF HEARING : 2. 06.2015 DATE OF PRONOUNCEMENT : 03.06.2015 ORDER PER N.K. SAINI, A.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST T HE ORDER DATED 29.09.2010 OF THE LD. CIT(A)-XX, NEW DELHI. 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTME NT READ AS UNDER:- THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW BY DE LETING THE DISALLOWANCE OF DEPRECIATION OF RS. 12,28,236/- MAD E SINCE THE ASSESSEE FAILED TO PROVE THE EXISTENCE AND USE OF CERTAIN PLANT AND MACHINERY COMPRISING DEMONSTRATION EQUIPM ENTS IGNORING THAT. ITA NO.5348/DEL/2010 2 (I) THE ASSESSEE HAD FAILED TO PROVIDE THE ADDRESS OF T HE PREMISES WHERE THE DEMONSTRATION EQUIPMENTS WERE KEPT. (II) THE ASSESSEE HAD FAILED TO EXPLAIN THE NATURE OF BU SINESS USE TO WHICH THE DEMONSTRATION EQUIPMENTS WERE PUT DURING THE YEAR. (III) AS PER THE OBSERVATIONS OF THE AUDITORS IN THE AUDI T REPORT, THE MANAGEMENT HAD NOT GOT THE EQUIPMENTS PHYSICALLY VERIFIED AT THE YEAR END. (IV) NO PHYSICAL VERIFICATION COULD BE GOT DONE BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS DESPITE SPECIFIC REQUISITION TO THIS EFFECT. 3. DURING THE COURSE OF HEARING, THE LEARNED COUNSE L FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/-, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN V IEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONT AINED IN SECTION 268A OF THE INCOME TAX ACT, 1961 (HEREINAFT ER TO BE REFERRED AS THE ACT). 4. ON THE OTHER HAND, THE LD. D.R., ALTHOUGH SUPPOR TED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTR OVERT THIS FACT THAT TAX EFFECT IN THIS APPEAL IS LESS THAN RS .4,00,000/-. 5. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. D.R . AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSP ECTIVE ITA NO.5348/DEL/2010 3 EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN S ECTION 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 APPLICATI ON FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESS EE 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 F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTION S ISSUED UNDER SUB-SECTION (1), IT SHALL NOT BE LAWFU L 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 ISSU E BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENC E IN ANY CASE. ITA NO.5348/DEL/2010 4 (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDER S, 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.] 6. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUG HT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE SAID PRO VISIONS MENTIONED IN SECTION 268A OF THE ACT SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 7. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTI ON NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REV ISED THE MONETARY LIMIT TO RS. 4,00,000/- FOR FILING TH E APPEAL BEFORE THE TRIBUNAL. 8. KEEPING IN VIEW THE CBDT INSTRUCTION NO.5 OF 201 4 DATED 10.07.2014 AND ALSO THE PROVISIONS OF SECTION 268A OF ITA NO.5348/DEL/2010 5 INCOME TAX ACT, 1961, WE ARE OF THE VIEW THAT THE R EVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE F OLLOWING DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT:- 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) 9. SIMILARLY THE HONBLE DELHI HIGH COURT IN THE CA SE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORD ER DATED 03.03.2011 BY FOLLOWING THE 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. 10. FROM THE RATIO LAID DOWN BY THE HONBLE DELHI H IGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THE REFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORE SAID REFERRED TO CASES, WE ARE OF THE CONSIDERED VIEW TH AT INSTRUCTION NO.5/14 DATED 10.07.2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN TH E SAID ITA NO.5348/DEL/2010 6 INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4.00 LAKHS. 11. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 12. IN THE RESULT, APPEAL OF THE REVENUE STAND DISM ISSED. (ORDER PRONOUNCED IN THE COURT ON 03/06/2015). SD/- SD/- (GEORGE GEORGE K) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 03/06/2015 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.5348/DEL/2010 7 DATE INITIAL 1. DRAFT DICTATED ON 02/06/2015 2. DRAFT PLACED BEFORE AUTHOR 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.