ACIT, New Delhi V. M/s. Weather Bys Construction Pvt. Ltd., New Delhi

ITA 638/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97960 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 26-11-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 04-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, ACCOUNTANT MEMBER ITA NO: 638/DEL/2014 AY: - 2003-04 ACIT, CENTRAL CIRCLE -17, VS. M/S. WEATHER BYS CONSTRUCTION PVT. LTD. NEW DELHI. B-10, SHIVALIK, MALVIYA NAGAR, NEW DELHI. (PAN AAACW5325R) (APPELLANT) (RESPONDENT) AND CO NO. 316/DEL/2015 AY: - 2003-04 M/S. WEATHER BYS CONSTRUCTION PVT . LTD. VS. ACIT, CENTRAL CIRCLE-15 (NOW KNOWN AS :PASSION HEIGHTS PV T. LTD.) NEW DELHI E-210,SECOND FLOOR, CHATTARPUR EX TN., CHATTARPUR, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ATIQ AHMED, SR. DR RESPONDENT BY : SHRI B.K. DHINGRA, CA DATE OF HEARING :26.11.2015 DATE OF PRONOUNCEMENT : 27 .11.2015 O R D E R PER G.D. AGRAWAL, VICE PRESIDENT THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARISE OUT THE CIT (A) ORDER DATED 4.12.2013. THE RELEVANT ASS ESSMENT YEAR IS 2003-04. THE GROUNDS OF APPEAL OF THE REVENUE ARE AS UNDER:- 1. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW AND ON FACT OF THE CASE IN DELETING THE ADDITION U/S 69C O F RS. 4,48,300/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED PURCHASES. ITA NO. 638/DEL/2014 & CO. NO. 316/DEL/20 15 2 2. THE COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN LA W AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS. 5 ,58,732/- MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF EXPENDITURE. 2. DURING THE COURSE OF HEARING, LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS T HAN RS. 4,00,000/-, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN V IEW OF THE CIRCULAR ISSUED BY THE CBDT AND THE PROVISIONS CONTAINED IN SECTION 268A O F THE INCOME TAX ACT 1961 (HEREINAFTER TO BE REFERRED AS THE ACT). 3. AS PER THE LD. COUNSEL FOR THE ASSESSEE, THE AMOUNT OF ADDITION MADE AS PER GROUND NO. 1 IS RS. 4,48,300/- AND AS PER GROUND 2 IS RS. 5,58,732/-. THEREFORE THE TOTAL AMOUNT CONTESTED IS RS. 10,07,032/-. SO, THE TAX EFFECT @ 30% WOULD WORK OUT TO BE RS. 3,52,461/- AND AFTER ADDING EDUCATION CES S @ 2% AND HIGHER EDUCATION CESS @ 1%,THE TOTAL TAX WILL COME TO RS. 3,70,084/- ONLY AND HENCE WILL BE LESS THAN RS. 4 LAKHS. HE THEREFORE SUBMITTED THAT THE DEPART MENT OUGHT NOT TO HAVE FILED THE APPEAL AND PRAYED THAT THE INSTANT CASE MAY BE DISM ISSED. 4. ON THE OTHER HAND, THE LD. DR ALTHOUGH SUPPOR TED THE ORDER OF AO, BUT COULD NOT CONTROVERT THIS FACT THAT THE TAX EFFECT IN THI S APPEAL IS LESS THAN RS. 4,00,000/-. 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH TH E PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT SECTION 268A HAS BEEN IN SERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01/04/1999. THE REL EVANT PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSU E ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME-TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT ITA NO. 638/DEL/2014 & CO. NO. 316/DEL/20 15 3 MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PRO VISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTION S OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), AN INCOME-TAX AUTHORITY HAS NOT FI LED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORI TY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEA R; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER AS SESSMENT YEAR; (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE ORDERS O R INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1), IT SHALL NOT BE LAWFU L FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT T HE 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 DIRECTIO NS ISSUED UNDER SUB-SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL O R APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH H AS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPL ICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB-SECTION (1) AN D THE PROVISIONS OF SUB- SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. 6. IT IS NOT IN DISPUTE THAT THE BOARDS INSTR UCTION OR DIRECTIONS ISSUED TO THE OTHER INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORI TIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE A BOVE MENTIONED SECTION 268A ITA NO. 638/DEL/2014 & CO. NO. 316/DEL/20 15 4 SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS TH AN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 7. IT IS NOTICED THAT THE CBDT HAS ISSUED INST RUCTION NO. 5/2014 DATED 10 TH JULY, 2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LI MIT TO RS. 4,00,000/- FOR FILING THE APPEAL BEFORE THE TRIBUNAL. 8. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 5 OF 2014 DATED 10TH JULY, 2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME T AX 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 FOLLOWI NG DECISIONS OF THE HONBLE PUNJAB & HARYANA HIGH COURT: 1. CIT VS. OSCAR LABORATORIES P. LTD. (2010) 324 ITR 115 (P&H); 2. CIT VS. ABINASH GUPTA (2010) 327 I TR 619 (P&H); 3. CIT VS. VARINDERA CONSTRUCTION CO. (2011) 331 ITR 449 (P&H) (FB). 9. SIMILARLY, THE HONBLE DELHI HIGH COURT IN T HE CASE 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 APPLICA BLE TO PENDING CASES. 10. THUS, FROM THE RATIO LAID DOWN BY THE HONB LE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT AR E APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASE, WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTIO N NO. 5 OF 2014 DATED 10TH JULY, 2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PEND ING CASES ALSO AND IN THE SAID ITA NO. 638/DEL/2014 & CO. NO. 316/DEL/20 15 5 INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4,00,000/-. 11. SINCE THE REVENUES APPEAL IS DISMISSED IN L IMINE THE ASSESSEES CROSS OBJECTION IS NOT TAKEN UP FOR ADJUDICATION. 12. IN THE RESULT APPEAL OF THE REVENUE AND CRO SS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH NOVEMBER, 2015. SD/- SD/- (SUDHANSHU SRIVASTAVA) (G.D. AGRAWAL) ACCOUNTANT MEMBER VIC E PRESIDENT DATED: 27. 11.2015 VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER DY. REGISTRAR L. NO. DESCRIPTION DATE 1. DATE OF DICTATION BY THE AUTHOR 26.11.2015 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 26.11.2015 ITA NO. 638/DEL/2014 & CO. NO. 316/DEL/20 15 6 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY THE SECOND MEMBER 5. DATE OF APPROVED ORDER COMES TO THE SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER 7. DATE OF FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER