DCIT, New Delhi V. M/s. Flex International Pvt. Ltd., New Delhi

ITA 61/DEL/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2748 (ITAT-DELHI)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-01-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 03-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SURESH ANANTHARAMAN
• Keywords: Tax effect
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.O.P.KANT, ACCOUNTANT MEMBER I.T.A .NO. - 61 /DEL/201 4 (ASSESSMENT YEAR - 2010 - 11 ) DCIT, CENTRAL CIRCLE - 18, NEW DELHI (APPELLANT) VS FLEX INTERNATIONAL PVT.LTD., 305, 3 RD FLOOR, BHANOT CORNER, PAMPOSH ENCLAVE, G.K. - 1, NEW DELHI PAN - AAACF0250E (RESPONDENT ) APPELLANT BY MS. RAKHI VIMAL, SR.DR RESPONDENT BY SH.SURESH ANANTHARAMAN, CA ORDER PER DIVA SINGH, JM BY THE PRESENT APPEAL THE REVENUE ASSAILS THE CORRECTNESS OF THE ORDER DATED 15.10.2013 OF CIT(A) - III, NEW DELHI PERTAINING TO 2010 - 11 ASSESSMENT YEAR ON THE FOLLOWING GROUND: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.13,70,278/ - OUT OF TOTAL DISALLOWANCE OF RS.13,74,963/ - MADE BY THE AO IN VIEW OF THE PROVISIONS OF SECTION 14A OF T HE INCOME TAX ACT, 1961 READ WITH RULE 8D OF THE INCOME TAX RULES, 1962. 2. THE LD. AR, MR. SURESH ANANTHARAMAN INVITING ATTENTION TO THE QUANTUM OF RELIEF GRANTED BY THE CIT(A) SUBMITTED THAT THE DEPARTMENTAL APPEAL SHOULD BE DISMISSED ON THE GROUNDS OF LOW TAX EFFECT RELYING UPON THE LATEST CIRCULAR NO.21/2015 DATED 10 TH DECEMBE R, 2015 OF CBDT . 3. MS. RAKHI VIMAL, SR. DR CONSIDERING THE GROUNDS AND THE ADDITIONS AT STAKE FOR THE REVENUE FAIRLY SUBMITTED THAT IN TERMS OF THE CBDT CIRCULAR NO.21/2015 DATED 10 TH DECEMBER 2015, THE DEPARTMENTAL APPEAL MAY BE TREATED AS NOT PRESSED. DATE OF HEARING 04 . 01 .201 6 DATE OF PRONOUNCEMENT 04 . 01 .201 6 I.T.A .NO. - 6 1 / DEL/201 4 PAGE 2 OF 4 4 . IT MAY NOT BE OUT OF PLACE TO REFER TO SECTION 268A OF THE INCOME - TAX ACT, 1961 WHICH HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFEC T FROM 01.04.1999 WHICH MANDATES THE CBDT TO ISSUE NOTIFICATION S AND CIRCULAR S AS CIRCULAR NO.21/2015 DATED 10TH DECEMBER, 2015 OF CBDT, WHICH HAS REVISED THE MONETARY LIMIT FOR FILING OF THE DEPARTMENTAL APPEAL TO THE ITAT AT RS.10 LAC HAS BEEN ISSUE D UNDER THE SAID PROVISIONS BY THE CBDT. THE RELEVANT PROVISION R E A D S AS UNDER : - 268A. (1) THE BOARD MAY, F ROM 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 PR OVISIONS 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 ASSESSME NT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE 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. (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 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.] 5 . RELEVANT EXTRACTS (PA RAS 1 TO 4) FROM THE AFORESAID CBDT CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 IS ALSO REPRODUCED HEREUNDER FOR READY REFERENCE: SUBJECT : REVISION OF MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE SUPREME COURT MEASURES FOR REDUCING LITIGATION REG. REFERENCE IS INVITED TO BOARD S INSTRUCTION NO 5/2014 DATED 10.07.2014 WHEREIN MONETARY LIMITS AND OTHER CONDITIONS FOR FILING DEPARTMENTAL APPEALS (IN INCOME - TAX MATTERS) BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT WERE SPECIFIED. 2. IN SUPERSESSION OF THE ABOVE INSTRUCTION, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFORE APPELLATE TRIBUNAL AND HIGH COURTS AND SLP BEFORE THE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIED BELOW. I.T.A .NO. - 6 1 / DEL/201 4 PAGE 3 OF 4 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S. NO APPEALS IN INCOME - TAX MATTER MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/ - 2 BEFORE HIGH COURT 20,00,000/ - 3 BEFORE SUPREME COURT 25,00,000/ - IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HA D SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS DISPUTED ISSUES ). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 6 . WE HAVE SEEN THAT THE MONETARY LIMITS HAVE BEEN MADE APPLICABLE RETROSPECTIVELY BY THE CBDT IN THE SAID CIRCULAR AS WOULD BE EVIDENT FROM THE FOLLOWING EXTRACT: - 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 7 . IN VIEW OF THE ABOVE WHERE THE TAX EFFECT IS ADMITTEDLY BELOW RS.10 LAC THE APPEAL FILE D IS DISMISSED AS THE SAID CIRCULAR IS BINDING ON THE REVENUE . R ELYING ON THE AFORESAID CIRCULAR THE DEPARTMENTAL APPEAL IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH IS DISMISSED. 8 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSE D . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 04 TH JANUARY , 201 6 . S D / - S D / - (O.P.KANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04 / 0 1 /201 6 * AMIT KUMAR * I.T.A .NO. - 6 1 / DEL/201 4 PAGE 4 OF 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI