ITO, New Delhi V. M/s G.D. Bakers & Confenctioners Pvt. Ltd., New Delhi

ITA 5630/DEL/2012

• Counselvise Citation: 563020114 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 30-12-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 07-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH SENIOR
• Assessee Lawyers: REEMA MALIK
• Keywords: Question of law; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C : NEW DELHI) BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5630/DEL./2012 (ASSESSMENT YEAR : 2003-04) ITO, WARD 12 (1), VS. M/S. G.D. BAKERS & CONFECTIO NERS PVT. LTD., NEW DELHI. PLOT NO.14, B BLOCK COMMUNITY CENTRE, JANAK PURI, NEW DELHI 110 058. (PAN : AABCG0124H) (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. REEMA MALIK, ADVOCATE REVENUE BY : SHRI SATPAL SINGH, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YE AR 2003-04 ARISES OUT OF THE ORDER OF LD. CIT(APPEALS)-XV, NEW DELHI. THE GROUND OF APPEAL RAISED IS REPRODUCED AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.8,60,000/- MADE BY THE ASSESSING OFFICER IN TERMS O THE PROVISIONS OF SECTION 68 OF THE INCOME-TAX ACT, 1961 BY TAKING INTO ACCOUNT THE REP ORT OF INVESTIGATION WING O THE DEPARTMENT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.12,900/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION P AID TO ENTRY OPERATOR FOR TAKING THE ACCOMMODATION ENTRY. ITA NO.5630/DEL./2012 2 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE TAX EFFECT IN THIS CASE IS LESS THAN RS.3.00 LAKHS. THIS POSI TION IS ADMITTED BY THE LD. D.R. THEREFORE, AS PER THE INSTRUCTION NO. 3/2011 DATE D 09.02.2011 THE REVENUE IS NOT PERMITTED TO FILE APPEAL BEFORE THE TRIBUNAL IF T HE TAX EFFECT IS LESS THAN RS.3.00 LAKH. HE PLACED RELIANCE ON THE DECISION OF HO NBLE DELHI HIGH COURT DATED 25.03.2011 IN ITA NOS. 3 TO 5/2010. 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE MATERIAL AVAILABLE ON RECORD. INSTRUCTION NO. 3/2011 DATED 09.02.2011 HAS REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE I NCOME-TAX APPELLATE TRIBUNAL, HONBLE HIGH COURTS AND HONBLE SUPREME COURT. MONETARY LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS RS. 3.00 LAKH; BEFORE HONBLE HIGH COURT RS. 10.00 LAKH AND BEFORE HONBLE SUPREME COURT RS. 25.00 LAKH. HONBLE DELHI HIGH COURT IN THEIR ORDER DATED 25.03.2011 REFERRED TO ABOVE HAS HELD AS UNDER:- IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CASES IS LESS THAN RS. 10.00 LAKHS. 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 LAKHS TO RS. 10.00 LAKHS. THE DIVISION BENCH OF THIS COURT IN ITA NO. 89/199 9 DECIDED ON 28.01.2011 HAS ALREADY HELD THAT THE INSTRUCTIO N BEARING NO. 5/2008 DATED 15.05.2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. THIS PRINCIPLE WOULD TH US NATURALLY EQUALLY APPLY TO THE INSTANT INSTRUCTION BEARING NO.3/201 1 DATED 09.02.2011, AS WELL. THE TAX EFFECT BEING LESS THAN RS. 10 .00 LAKHS, THE QUESTION OF LAW DOES NOT REQUIRE TO BE ANSWERED. THE APP EALS ARE DISPOSED OF ACCORDINGLY. ITA NO.5630/DEL./2012 3 3.1 LD. AR FOR THE ASSESSEE HAS ALSO RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CL UB LTD. IN ITA NO. 128/2008 DATED 03.03.2011 WHEREIN IT HAS BEEN HELD AS UNDE R:- 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 LAKHS, AR E 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. 3.2 IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT, WHICH IS THE JURISDICTIONAL HIGH COURT IN THIS CASE, IT IS HEL D THAT INSTRUCTION NO. 3/2011 DATED 09.02.2011 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLLOWING THE PRECEDENT, IT IS HELD THAT THE APPEAL IS NOT M AINTAINABLE IN THE INSTANT CASE AS THE TAX EFFECT IS LESS THAN RS. 3.00 LAKHS. ACCORDI NGLY, IT IS HELD THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 4. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS DISMISSED WITHOUT GOING INTO THE MERITS. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF DECEMBER, 2013. SD/- SD/- (A.D. JAIN) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 30 TH DAY OF DECEMBER, 2013/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.