ITO, New Delhi V. Smt. Jayoshree Banerjee, Greater Noida

ITA 5377/DEL/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8937 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 21-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-10-2013
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5377 /DEL./2013 ASSESSMENT YEAR : 2008-09 ITO, WARD 45 (2), VS. SMT. JAYOSHRI BANERJEE, NEW DELHI. T 1/703, PARSAVNATH PLATINUM, SECTOR TAU, SWARAN NAGHRI, GREATER NOIDA 201 306. (PAN : ACSPB5150G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINEET GUPTA, CA REVENUE BY : SHRI J.P. CHANDRKAR, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF THE CIT (APPEALS)- XXX, NEW DELHI DATED 30.08.2013 FOR THE ASSESSMENT YEAR 2008-09. 2. IN THIS CASE, THE REVENUE HAS COME IN APPEAL ON ACCOUNT OF DELETING THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.9,55,473/- BY I GNORING THE MATERIAL FACT THAT THE GENUINENESS OF THE TRANSACTION AND CASH DEPOSITS RE MAINED UNEXPLAINED AS THE ASSESSEE FAILED TO DISCHARGE THE ONUS CAST UPON HER OF PROVI DING THE SOURCE OF CASH DEPOSITS IN HER BANK ACCOUNT. THE ASSESSEE FILED RETURN OF INC OME ON 29.07.2008 DECLARING INCOME OF RS.2,16,620/-. THE AO ASSESSED THE INCOM E AT RS.14,60,590/-. THE 2 ITA NO.5377/DEL/2013 ASSESSMENT YEAR IN THE APPEAL IS 2008-09. THE TAX EFFECT ON THE DELETED ADDITION IS LESS THAN THE THRESHOLD LIMIT, I.E. RS.4 LACS. THE APPEAL HAS BEEN FILED ON 03.10.2013. 3. WE FIND THAT THE TAX EFFECT IN THIS CASE IS L ESS THAN RS.4 LACS. AS PER THE RECENT CBDT INSTRUCTION NO.5/2014 DATED 10.07.2014 , THE REVENUE IS NOT PERMITTED TO FILE APPEAL BEFORE THE TRIBUNAL IF THE TAX EF FECT IS LESS THAN RS.4.00 LAKH. WE FIND SUPPORT FROM THE DECISION OF HONBLE SUPREME COURT DATED 25.03.2011 IN ITA NOS. 3 TO 5/2010. LD. DR FOR THE REVENUE SUBMITTED THAT INSTRUCTION NO. 5/2014 IS NOT APPLICABLE FOR THE APPEALS FILED PRIOR TO ISSUE OF THE SAID INSTRUCTIONS. IT IS ALSO SUBMITTED THAT THE FULL BENCH OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. VIRENDRA CONSTRUCTION CO., 239 CTR 1, HELD THAT REVISED MONETARY LIMITS ARE NOT APPLICABLE TO THE PENDING APPEALS, AND IT IS IN FAVOUR OF THE REVENUE. 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH TH E MATERIAL AVAILABLE ON RECORD. INSTRUCTION NO.5/2014 DATED 10.07.2014 H AS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE INCOM E-TAX APPELLATE TRIBUNAL, HONBLE HIGH COURTS AND HONBLE SUPREME COURT. MONETARY LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS RS.4.00 LAKH; BEFORE HONBLE HIGH COURT RS. 10.00 LAKH AND BEFORE HONBLE SUPREME COURT RS. 25.00 LAKH. HO NBLE SUPREME COURT IN THE ORDER DATED 25.03.2011 REFERRED TO ABOVE HAS HELD AS U NDER:- IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CASES IS LESS THAN RS. 10.00 LACS. THE DEPARTMENT HAS RECENTLY ISSUED AN INSTRUCTION BEARING NO. 3/2011 DATED 09.02.2011, WHICH IS IDENTICAL TO ITS EARLIER INSTRUCTION BEARING NO. 5/2008 DATED 15.05.2008 EXCEPT THAT IN SO FAR AS THE HIGH COURT IS CONCERNED, T HE MONETARY LIMIT IN RESPECT OF APPEALS WHERE THE QUESTIONS OF LAW R AISED NEED NOT TO BE ANSWERED, HAS BEEN RAISED FROM RS. 4.00 LAC S TO RS. 10.00 LACS. THE DIVISION BENCH OF THIS COURT IN ITA NO. 89/1999 DECIDED ON 28.01.2011 HAS ALREADY HELD THAT THE INSTRUCTION BEARING NO. 5/2008 DATED 15.05.2008 WOULD APPLY EVEN TO THE OLD 3 ITA NO.5377/DEL/2013 PENDING REFERENCES AND APPEALS. THIS PRINCIPLE WOULD THUS NATURALLY EQUALLY APPLY TO THE INSTANT INSTRUCTIO N BEARING NO.3/2011 DATED 09.02.2011, AS WELL. THE TAX EFFECT BEING LESS THAN RS. 10.00 LACS, THE QUESTION OF LAW DOES NOT REQUIRE TO BE ANSWERED. THE APPEALS ARE DISPOSED OF ACCORDINGLY. 4.1 HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008 DATED 03.03.2011 HAS HELD AS UND ER:- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS. 4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL I N THOSE CASES WHERE THE TAX EFFECT IS LESS THAN RS. 10.00 LAC S, ARE NOT TO BE ENTERTAINED. THIS COURT IN THE CASE OF CIT, DELHI-III VS. M/S P .S. JAIN & CO., BEING ITA NO. 179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDIN G CASES. 4.2 IN VIEW OF THE ABOVE, INSTRUCTION NO. 5/2014 DATED 10.07.2014 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLLOWING THE PRECEDENT, IT IS HELD THAT THE APPEAL IS NOT MAINTAINABLE IN THE INSTANT CASE AS THE TAX EFFECT IS LESS THAN RS.4 LACS. ACCORDINGLY, IT IS HELD THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 5. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS DISMISSED WITHOUT GOING INTO THE MERITS. ORDER PRONOUNCED IN OPEN COURT ON THIS DAY OF 2 0 TH JANUARY, 2015. SD/- SD/- (I.C. SUDHIR) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 21 ST DAY OF JANUARY, 2015 TS 4 ITA NO.5377/DEL/2013 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.