DCIT, New Delhi V. M/s. Garuda Imaging & Diagnostics Pvt. Ltd., New Delhi

ITA 5850/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97123 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 20-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASAN TAN
• Keywords: Retrospective amendment; Additional evidence; Tax effect
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.INTURI RAMA RAO, ACCOUNTANT MEMBER I.T.A .NO. - 5850 /DEL/201 3 (ASSESSMENT YEAR - 200 9 - 1 0) DCIT, CENTRAL CIRCLE - 21, ROOM NO. - 344, E - 2, ARA CENTRE, JHANDEWALAN EXTENSION, NEW DELHI - 110055. (APPELLANT) VS GARUDA IMAGING & DIAGNOSTICS PVT.LTD., 129, TRANSPORT CENTRE, ROHTAK ROAD, PUNJABI BAGH, NEW DELHI - 110035 . PAN - AAAC G4168N (RESPONDENT) APPELLANT BY SH. T.VASANTAN, SR. DR RESPONDENT BY SH. SUMIT LAL CHANDANI, ADV. ORDER T HE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE ASSAIL ING THE CORRECTNESS OF THE ORDER DATED 0 5 / 07 /2013 OF CIT(A) - X V , NEW DELHI PERTAINING TO 200 9 - 1 0 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: - 1. THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN LAW AND ON FACTS BY ACCEPTING ADDITIONAL EVIDENCES IN CONTRAVENTION OF RULE 46A. 2. THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE MADE U/S 14A R.W. RULE 8D AMOUNTING TO RS.7,85,336/ - . 3. (A) THE ORDER OF THE CIT(A IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 2. THE ASSESSEE HAS MOVED A PETITION SEEKING TIME HOWEVER CONSIDERING THE CBDT INSTRUCTION 5 OF 2014 DATED 10.07.2014 L D. SR. DR WAS REQUIRED TO ADDRESS THE TAX EFFECT INVOLVED IN THE PRESENT DATE OF HEARING 2 0.0 8 .2015 DATE OF PRONOUNCEMENT 26 .08 .2015 2 I.T.A .NO. - 5850 /DEL/201 3 APPEAL. CONSIDERING THE GROUNDS THE LD. SR.DR STATED THAT T HE TAX EFFECT INVOLVED IN THE PRESENT APPEAL APPEARS TO BE LESS THAN RS.4 LACS . HOWEVER IN ORDER TO PROPERLY ASCERTAIN THE POSITION THE APPEAL WAS PASSED OVER SO THAT LD.SR.DR COULD BE FULLY SATISFIED. ACCORDINGLY, THE PETITION SEEKING TIME WAS PASSED OVER A N D F I N A L L Y W I T H D R A W N . 3 . IN THE SECOND ROUND WHEN THE APPEAL WAS CALLED OUT THE LD. SR. DR REFERRING TO THE RECORD SUBMITTED T HAT THE TOTAL ADDITION MADE BY THE AO IN THE ORDER U/S 143(3) DATED 19.11. 201 1 WAS ONLY RS. 7,85,336/ - . THUS AFTER HEARING THE LD. SR. DR THE PETITION SEEKING TIME WAS W I T H D R A W N AND IT WAS CONSIDERED APPROPRIATE TO DECIDE THE APPEAL ON THE BASIS OF TAX EFFEC T. THE LD. SR. DR STATED THAT THOUGH THE TAX EFFECT INVOLVED IS LESS THAN RS.4 LACS HOWEVER RELIANCE WAS PLACED ON THE ASSESSMENT ORDER. THE RECORD SHOWS THAT THE PRESENT APPEAL WAS FILED ON 3 1. 1 0.201 3 AND THE LATEST CBDT INSTRUCTION NO. - 5 OF 2014 DATED 10.07.2014 HAS REVISED THE MONETARY LIMIT FOR FILING APPEAL BEFORE THE TRIBUNAL AS RS.4 LACS. CONSIDERING THE JUDICIAL PRECEDENT AVAILABLE, WE FIND THAT THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL. THE SAID POSITION WAS NOT CONTROVERTED BY THE LD. SR. DR ALTHOUGH HE SUPPORTED THE ORDER OF THE A.O. IN THE ABOVE STATED FACTUAL POSITION CONSIDERING THAT SECTION 268A HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/99. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UND ER: 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 IN COME - 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 REFERENCE ON THE SAME ISSUE IN THE CASE OF 3 I.T.A .NO. - 5850 /DEL/201 3 THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR ( B ) ANY OTHER ASSESSEE FOR THE SAME OR A NY 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, B EING 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. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEA L OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, 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.] 4 . IT IS NOT IN DISPUTE THAT THE BOARD S INSTRUCTION OR DIRECTIONS ISSUED TO THE INCOME - TAX AUTHORITIES ARE BINDING ON THESE AUTHORITIES, THEREFORE, THE PRESENT APPEAL IN VIEW OF THE ABOVE SAID PROVISIONS MENTIONED IN SECTION 268 A OF THE ACT OUGHT NOT TO HAV E BEEN FILED BY THE DEPARTMENT SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 5 . IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REVISED THE MO NETARY LIMIT TO RS. 4,00,000/ - FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 6 . KEEPING IN VIEW THE CBDT INSTRUCTION NO.5 OF 2014 DATED 10.07.2014 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 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) 4 I.T.A .NO. - 5850 /DEL/201 3 3. CIT V VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H)(FB). 7 . SIMILARLY THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT V. 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 V. M/S. P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 8 . FROM THE RATIO LAID DOWN BY THE HON BLE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO.5/14 DATED 10.07.20 14 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 LAKHS. 9 . IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, WE DISMISS THE APP EAL FILED BY THE REVENUE. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES. 10 . IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 6 T H AUGUST 2015. S D / - S D / - (INTURI RAMA RAO) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 6 /08 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI