ITO, New Delhi V. Smt. Puran Devi Mahajan, New Delhi

ITA 6316/DEL/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9960 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 08-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 28-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Keywords: Rectification of order; Retrospective amendment; Tax effect
• Section: 143(3); 154

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI BEFORE SHRI J.S.REDDY , ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 6316 /DEL/ 2013 (ASSESSMENT YEAR: 2008 - 09 ) ITO WARD - 36(1) NEW DELHI VS. PURAN DEVI MAHAJAN, M - 138, LAXMI NAGAR, NEW DELHI PAN:AAZPM1477A (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VIKRAM SAHAY, SR. DR RESPONDENT BY : SH. VIKRAM KAKAR, ADV DATE OF HEARING 08.05.2015 DATE OF PRONOUNCEMENT 13 . 05 .2015 O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER OF THE CIT(A), XXVII , NEW DELHI DATED 30. 09 .2013 RELEVANT TO THE ASSESSMENT YEAR 2008 - 09 . 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTMENT READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN DECIDING THE CASE ON TECHNICAL GROUNDS WITHOUT DELVING INTO THE MERITS OF THE CASE. 3. DURING THE COURSE OF HEARING, LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/ - , THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CO NTAINED IN SECTION 268A OF THE INCOME TAX ACT 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). 4. AS PER THE LD. COUNSEL THE LD CIT(A) HAS ALLOWED AND APPEAL PREFERRED BY THE ASSESSEE BEFORE HIM AND THE ENHANCEMENT OF INCOME FROM RS.1,46,050/ - TO RS.11,58,86 0/ - WAS DELETED AND OBSERVED AS UNDER: - THE AO HAD CARRIED OUT THE RECTIFICATION WITHOUT VERIFYING WHETHER THERE WAS ANY MISTAKE AT ALL IN THE EARLIER 143(3) ORDER DATED 3.05.2010 OR IN THE RETURN OF INCOME FILED BY THE APPELLANT. THEREFORE, THE ORDER U/S 154 OF THE IT ACT DATED 28.12.2012 WAS PASSED WITHOUT CONSIDERING WHETHER THERE WAS ANY PAGE NO. 2 MISTAKE APPARENT FROM THE RECORD NECESSITATING RECTIFICATION. THE AO HAD TAKEN APPELLANT'S INCOME FROM LIFE INSURANCE BUSINESS AT RS.12,18,768/ - WRONGLY WITHOUT CONSID ERING THE EXPENDITURE OF RS.10,12,808/ - CLAIMED BY THE APPELLANT. AS THERE IS NO MISTAKE APPARENT FROM THE RECORD NECESSITATING RECTIFICATION U/S 154, THE RECTIFICATION ORDER DATED 28.12.2012 IS NOT SUSTAINABLE. THEREFORE, GROUNDS OF APPEAL RAISED BY THE A PPELLANT IS ALLOWED AND THE ENHANCEMENT OF INCOME FROM RS.1,46,050/ - TO RS. 11,58,860/ - IS DELETED. THUS, THE APPELLANT'S INCOME FOR THE A.Y. 2008 - 09 REMAINS AT RS.1,46,050/ - . 5. AS PER THE LD COUNSEL FOR THE ASSESSEE THE NET TAX EFFECT OF THE IMPUGNED ADDITION WHICH STANDS DELETED I.E. RS .11,58,680/ - WILL BE LESS THAN RS. 4 LAKHS ONLY AND SO THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL AND PRAYED THAT THE INSTANT CASE MAY BE DISMISSED. 6. ON THE OTHER HAND, THE LD. DR ALTHOUGH S UPPORTED THE ORDER OF AO, BUT COULD NOT CONTROVERT THIS FACT THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4,00,000/ - . 7. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN INSER TED 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 REFER ENCE 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 D ISPUTED 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 PAGE NO. 3 (1) AND THE CIRCUMST ANCES 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. 8. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME - TAX AUTHORITIES ARE BINDI NG 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. 9. IT IS NOTICED 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. 10. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 2014 DATED 10TH JULY, 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 THE HONBLE PUNJAB & HAR YANA 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). 11. SIMILARLY, THE HONBLE 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. 12. THUS, FROM THE RATIO LAID DOWN BY THE HONBLE 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 REFER RED TO CASE, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO. 5 OF 2014 DATED 10TH 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/ - . PAGE NO. 4 13. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERIT OF THE CASE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 14. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 3 . 05 .2015. - S D / - - S D / - ( J.S.REDDY ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 3 / 05 /2015 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI