ACIT, New Delhi V. M/s. Agarwal Assignments Pvt. Ltd., Delhi

ITA 5633/DEL/2013

• Counselvise Citation: 563320114 RSA 2013
• Duration Of Justice: 1 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 18-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A MISHRA
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHIR H.S. SIDHU, JUDICIAL MEMBER ITA NO . 5633 / DEL/201 3 ASSESSMENT YEAR: 200 7 - 0 8 ASSISTANT COMMISSIONER VS. M/S AGARWAL ASSIGNMENT S CENTRAL CIRCLE - 13, PVT. LTD., ROOM NO. 332 , ARA CENTRE, H - 3/11B, KRISHAN NAGAR JHANDEWALAN EXTN., NEW DELHI DELHI 110 051 (PAN: AAACA1547M) (APPELLANT) (RESPONDENT) APPELLANT BY : A. MISHRA, CIT(DR) RES PONDENT BY : C .S. ANAND, ADV. DATE OF HEARING : 3 1 - 0 3 - 2015 DATE OF ORDER : 3 1 - 0 3 - 2015 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 07 / 8 / 201 3 OF L D. CIT(A) - I , NEW DELHI PERTAINING TO ASSESSMENT Y EAR 2007 - 08. 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTMENT READ AS UNDER: 1. THE ORDER OF LD. CIT(A) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 9,50,000/ - MA DE BY AO ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FROM SHRI MANOJ KUMAR WITHOUT APPRECIATING THE FACT THAT THE CREDITWORTHINESS OF THE LENDER COULD NOT BE PROVED. 3. ON THE FACTS AND CIRCUMSTANCE OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 2,15,000/ - MADE BY AO ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED FROM SH. MOTI RAM AGGARWAL ITA NO. 5633 / D EL /20 1 3 ( ACIT V. AGARWAL ASSIGNMENTS PVT LTD ) 2 WITHOUT APPRECIATING THE FACT THAT THE CREDITWORTHINESS OF THE LENDER COULD NOT BE PROVED. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY / ALL THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 3. DURING THE COURSE OF HEARING, LD. COUNSEL OF THE ASSESSEE AT THE VERY OUTSET STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 4,00,000/ - , THERE FORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONTAINED IN THE SECTION 268A OF THE INCOME TAX ACT, 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). 4. ON THE OTHER HAND, L D. DR SUPPOR TED THE ORDER OF AO , BUT COULD NOT CONTROVERT THIS FACT THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 4,00,000/ - . 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSERTE D BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/1999. THE RELEVANT 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 REFE RENCE 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. ITA NO. 5633 / D EL /20 1 3 ( ACIT V. AGARWAL ASSIGNMENTS PVT LTD ) 3 (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CI RCUMSTANCES 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 RE FERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. 7 . IT IS NOT IN DISPUTE THAT T HE BOARD S INSTRUCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME - TAX AUTHORITIES A RE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE ABOVE MENTIONED SECTION 268A SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 8 . IT IS NOTICE D THAT THE CBDT HAS ISSUED INSTRUCTION NO. 5/2014 DATED 10 TH JULY, 2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 4,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 9 . KEEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 2014 DATED 10 TH JULY, 2 014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961 , WE ARE OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS OF THE HON BLE PUN JAB & HARYANA HIGH COURT: 1. CIT VS. OSCAR LABORATORIES P. LTD. (2010) 324 ITR 115 (P&H); 2. CIT VS. ABINASH GUPTA (2010) 327 ITR 619 (P&H); 3. CIT VS. VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H) (FB). 10 . SIMILARLY, THE HON BLE DELHI HIGH COURT IN THE CAS E OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008, ORDER 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 VS. M/S P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDI NG CASES. 1 1 . THUS, FROM THE RATIO LAID DOWN BY THE HON BL DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR ITA NO. 5633 / D EL /20 1 3 ( ACIT V. AGARWAL ASSIGNMENTS PVT LTD ) 4 PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERR ED TO CASE, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO. 5 OF 2014 DATED 10 TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4, 00,000/ - . 1 2 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 1 3 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 / 3 /201 5 . SD/ - SD/ - ( G.D. AGRAWAL ) ( H.S. SIDHU ) VICE PRESIDENT JUDICIAL MEMBER DATED: 3 1 / 3 /201 5 * SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR