ITO, New Delhi V. M/s L.P. Jaiswal & Sons Pvt. Ltd., New Delhi

ITA 5486/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7601 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 16-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 07-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Wrong claim; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. T. S. KAPOOR , ACCOUNTANT MEMBER I.T.A .NO. 5486 / DEL/201 3 (ASSESSMENT YEAR - 2009 - 10 ) ITO CO. WARD 4(4), NEW DELHI (APPELLANT) VS M/S L. P JAISWAL & SONS PVT. LTD. 4 TH FLOOR, BHANDARI HOUSE, 91, NEHRU PLACE, NEW DELHI P AN - AAACL0073B (RESPONDENT) APPELLANT BY SH. VIVEK NANGIA, SR. DR RESPONDENT BY SH. R. S SINGHVI, CA ORDER PER DIVA SINGH, JM TH IS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 29.7.2013 OF CIT(A) - VIII, NEW DELHI , A GGRIEVED BY THE DELETION OF THE PENALTY IMPOSED U/S 271(1)(C) AMOUNTING TO RS. 3,93,975/ - . 2. THE LD. AR RIGHT AT THE OUTSET SUBMITTED THAT THE DEPARTMENTAL APPEAL IS NOT MAINTAINABLE I N VIEW OF THE FACT THAT IT HAS BEEN FILED CONTRARY TO THE INSTRUCTION NO. 5/2014 DATED 10.7.2014 WHICH HAS FIXED THE MONETARY LIMIT O F RS. 4,00,000/ - . R ELYING UPON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASES OF CIT VS TADASHI MURAKAMI (2009) 319 ITR 0347 (DEL) AND CIT VS P. S. JAIN AND CO. (2011) 335 ITR 0591, IT WAS HIS SUBMISSION THAT THE INSTRUCTION IS APPLICABLE TO THE PENDING MATTER S ALSO. 3. THE LD. SR. DR WAS REQUIRED TO ADDRESS THE FACTS AS TO WHEN THE DEPARTMENTAL APPEAL WAS FILED IN RESPONSE TO WHICH IT WAS SUBMITTED THAT THE DEPARTMENTAL APPEAL WAS FILED ON 7.10.2013 AND THE INSTRUCTION IS DATED 10.7.2014. HOWEVER, IN THE FACE 2 I.T.A .NO . 5486 /DEL/201 3 OF THE RELIANCE PLACED UPON TH E JUDGMENT OF THE JURISDICTIONAL HIGH COURT THE LD. SR. DR REFERRED TO NO CONTRARY DECISION OR ARGUMENT FOR OUR CONSIDERATION SO AS TO CANVASS THAT A CONTRARY VIEW COULD BE TAKEN. REFERRING TO THE INSTRUCTION IT WAS ADMITTED THAT THE TAX EFFECT IS RS. 3,9 3,000/ - ODD THAT IS BELOW THE MONETARY LIMIT. 4. THE LD. AR IN SUPPORT OF THE IMPUGNED ORDER FURTHER STATED THAT EVEN ON MERITS THE CLAIM OF THE ASSESSEE IS ALLOWABLE SINCE AS A RESULT OF THE DISALLOWANCE , NO TAX LIABILITY HAS OCCURRED AS THE ASSESSMENT W AS COMPLETED AT A LOSS AND THE CLAIM WAS B ASED ON T HE PAST HISTORY OF THE ASSESSEE C ONSIDERING WHICH THE CIT(A) HAS HELD ON MERIT THAT THE CLAIM IS NOT A BOGUS CLAIM. 5 . WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE SAME WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE THE CLAIM OF THE ASSESSEE HAS TO BE ALLOWED FOLLOWING THE JUDICIAL PRECEDENTS AS LAID DOWN BY THE HON BLE DELHI HIGH COURT. SPECIFIC REFERENCE MAY BE MADE TO CIT(A) VS P. S. JAIN (SUPRA) WHICH HAS TAKEN INTO CONSIDERATION THE JUDGMENT OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS PITHWA ENGINEERING WORKS (2005) 276 ITR 519 (BOM . ) WHEREIN IN PARAGRAPH 6 AT PAGE 520 THE HON BLE COURT WA S PLEASED TO HOLD AS UNDER: - THIS COURT CAN VERY WELL TAKE JUDICIAL NOTICE OF THE FACT THAT BY PASSAGE OF TIME MONEY VALUE HAS GONE DOWN, THE COST OF LITIGATION EXPENSES HAS GONE UP, THE ASSESSES ON THE FILE OF THE DEPARTMENT HAVE BEEN INCREASED CONSEQUEN TLY, THE BURDEN ON THE DEPARTMENT HAS ALSO INCREASED TO A TREMENDOUS EXTENT. THE CORRIDORS OF THE SUPERIOR COURTS ARE CHOCKED WITH HUGE PENDENCY OF CASES. IN THIS VIEW OF THE MATTER, THE BOARD HAS RIGHTLY TAKEN A DECISION NOT TO FILE REFERENCES IF THE TAX EFFECT LESS THAN RS. 2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEED TO BE ADOPTED BY THE DEPARTMENT. IN OUR VIEW, THE BOARD S CIRCULAR DATED MARCH 27, 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED. THE DEPARTMENT IS NO JU STIFIED IN PROCEEDING WITH THE OLD REFERENCES WHEREIN THE TAX IMPACT IS MINIMAL. THUS, THERE IS NO JUSTIFICATION TO PROCEED WITH DECADES OLD REFERENCES HAVING NEGLIGIBLE TAX EFFECT. 5.1 . IN VIEW OF THE ABOVE THE DEPARTMENTAL APPEAL IS DISMISSED. THE SA ID ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PART IES . 3 I.T.A .NO . 5486 /DEL/201 3 6 . IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 1 T H OF NOVEMBER 2014 . S D / - S D / - ( T. S. KAPOOR ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 1 / 1 1 /2014 SUBODH KUMAR /AMIT KUMAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI