ITO, Meerut V. M/s. Azad Roadlines, Meerut

ITA 940/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3881 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 13-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Tax effect
• Section: 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : A NEW DELHI) (DELHI BENCH : A NEW DELHI) (DELHI BENCH : A NEW DELHI) (DELHI BENCH : A NEW DELHI) BEFORE SHRI R.P. TOLANI , JUDICIAL MEMBER AND BEFORE SHRI R.P. TOLANI , JUDICIAL MEMBER AND BEFORE SHRI R.P. TOLANI , JUDICIAL MEMBER AND BEFORE SHRI R.P. TOLANI , JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER SHRI K.D. RANJAN, ACCOUNTANT MEMBER SHRI K.D. RANJAN, ACCOUNTANT MEMBER SHRI K.D. RANJAN, ACCOUNTANT MEMBER I.T.A. NO.940/DEL./2009 I.T.A. NO.940/DEL./2009 I.T.A. NO.940/DEL./2009 I.T.A. NO.940/DEL./2009 (ASSESSMENT YEAR : 2003 (ASSESSMENT YEAR : 2003 (ASSESSMENT YEAR : 2003 (ASSESSMENT YEAR : 2003- -- -04) 04) 04) 04) ITO, WARD 1(1), ITO, WARD 1(1), ITO, WARD 1(1), ITO, WARD 1(1), VS. VS. VS. VS. M/S AZAD ROADLINES, M/S AZAD ROADLINES, M/S AZAD ROADLINES, M/S AZAD ROADLINES, MEEERUT. MEEERUT. MEEERUT. MEEERUT. TRANSPORT NAGAR, TRANSPORT NAGAR, TRANSPORT NAGAR, TRANSPORT NAGAR, MEERUT. MEERUT. MEERUT. MEERUT. (PAN/GIR NO.AANFA8576A) (PAN/GIR NO.AANFA8576A) (PAN/GIR NO.AANFA8576A) (PAN/GIR NO.AANFA8576A) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : NONE ASSESSEE BY : NONE ASSESSEE BY : NONE ASSESSEE BY : NONE REVENUE BY : SHRI A.K. MONGA, SR.DR REVENUE BY : SHRI A.K. MONGA, SR.DR REVENUE BY : SHRI A.K. MONGA, SR.DR REVENUE BY : SHRI A.K. MONGA, SR.DR ORDER ORDER ORDER ORDER PER K.D. RAJNAN, AM PER K.D. RAJNAN, AM PER K.D. RAJNAN, AM PER K.D. RAJNAN, AM THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 2003- 04 ARISES OUT OF THE ORDER OF CIT(A), MEERUT. THE GROUNDS OF APPEAL R AISED ARE REPRODUCED AS UNDER: 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) HAS ERRED IN LAW IN HOLDING THAT EVEN IN THE EV ENT ORF NON-MAINTENANCE OF PROPER RECORD REJECTION OF BOO KS U/S 145 OF I.T. ACT, 1961 WAS NOT WARRANTED AND HAD NO EFFECT ON DETERMINATION OF INCOME BY AO? 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) HAS ERRED IN DELETING THE ADDITION OF `6,23,081 ON ACCOUNT OF FICTICIOUS LIABILITY, IN SPITE OF THE FACT THA T THE ASSESSEE HAD MISLED THE DEPARTMENT IN RESPECT OF OWNERSHIP OF VEHICLES. 3. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAD ERRED IN ADMITTING, ADDITIONAL EVIDENCE WITH OUT CONFRONTING THE SAME TO THE AO? 2. THE PRESENT APPEAL OF THE REVENUE WAS DISMISSED VI DE ORDER DATED 12.10.09 IN I.T.A. NO.940/DEL./09 ON THE GROUND THAT TA X EFFECT WAS LESS THAN `2 LAKHS. SUBSEQUENTLY, REVENUE FILED MISCELLANEOUS APPLICATION NO.205/DEL./10 (IN I.T.A. NO.940/DEL./09) REQUESTING THE TRIBUNAL THAT TAX EFFECT FOR ASSESSMENT YEAR 2002-03 WAS `2,27,849 AND NOT `2 LAKHS. ITAT, I.T.A. NO.940/DEL./2009 (A.Y. : 2003-04) 2 DELHI BENCH A VIDE ORDER DATED 28.1.2009 RECALLED THE ORDER DATED 12.10.09. 3. WHEN THE CASE CAME UP FOR HEARING ON 23.5.2011, N ONE ATTENDED ON BEHALF OF THE ASSESSEE. HOWEVER, KEEPING IN VIEW TH E TAX EFFECT INVOLVED, THE APPEAL FILED BY THE REVENUE IS BEING DISPOSED OF AFTER HEARING LD.SR.DR. 4. WE HAVE HEARD THE LD.SR.DR. WE FIND THAT TAX EFFEC T IN THE PRESENT APPEAL IS AT `2,27,849. WE ALSO FIND THAT HONBLE DEL HI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN I.T.A. NO.128/200 8 DATED 3.3.11 AS HELD AS UNDER: THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS RS.4, 65,860. AS PER THE RECENT GUIDELINES OF CBDT, APPEAL IN THOSE CASES W HERE TAX EFFECT IS LESS THAN RS.10 LAKHS ARE NOT BE ENTERTAINED. THIS COURT IN THE CASE OF CIT, DELHI-III VS. M/S P.S. JAIN & CO. BEING I.T.A. NO.179/1991 DECIDED ON 2 ND AUGUST, 2010 HAS TAKEN A VIEW THAT SINCE CIRCULAR WOULD ALSO APPLY TO THE PENDING CASES. IN VIEW OF THE DECISION OF HONBLE DELHI HIGH COURT, IT IS CLEAR THAT INSTRUCTION NO.2/2011, DATED 9.2.2011 WILL APPLY TO ALL PENDING A PPEALS. 5. CBDT VIDE INSTRUCTION NO.3/2011 DATED 9.2.2011 HA S REVISED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BE FORE ITAT, HONBLE HIGH COURTS AND HONBLE SUPREME COURT. THE MONETARY L IMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL IS OF RS.3 LAKHS; BEFORE HONBLE HIGH COURT IS 10 LAKHS; AND BEFORE THE HONBLE SUPREME COURT IS 25 LAK HS. AS MENTIONED ABOVE, THE TAX EFFECT IN THE PRESENT APPEAL IS AT RS.2,27 ,849. THEREFORE, THE APPEAL BEFORE US IS COVERED BY CBDT INSTRUCTION NO.3/ 2011 DATED 9.2.2011. AS HELD BY HONBLE DELHI HIGH COURT IN THE CASE OF CI T VS. DELHI RACE CLUB LTD.(SUPRA). RESPECTFULLY FOLLOWING THE DECISION OF H ONBLE DELHI HIGH COURT, IT IS HELD THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAIN ABLE. WE, THEREFORE, DISMISS THE APPEAL FILED BY THE REVENUE AS NOT MAINTAIN ABLE. I.T.A. NO.940/DEL./2009 (A.Y. : 2003-04) 3 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN OPEN COURT ON 23.05.2011. SD/- SD/- (R.P. TOLANI) (K.D. RANJAN) JUDCIAL MEMBER ACCOUNTANT MEMBER DATED: 23.5.2011 SKB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A),MEERUT. 5. DR DEPUTY REGISTRAR