ITO, Ward- 1(5), Noida V. Jaikaran Singh , Gautam Budh Nagar

MA 375/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2939 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 01-09-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 29-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JAI KARAN SINGH
• Keywords: Tax effect; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI C.M. GARG, JUDICIAL MEMBER Miscellaneous Application No.375/Del/2019 (ITA No.3504/Del/2018) Assessment Year: 2009-10 ITO, Ward-1(5), Noida. Vs Shri Jaikaran Singh, S/o Late Shri Sarjit Singh, Village Chiti, Gurukul, Sikandarabad, Distt. Gautam Budh Nagar, Uttar Pradesh. PAN: ESQPS7457K (Applicant) (Respondent) Assessee by : Shri Jaikaran Singh Revenue by : Shri Om Parkash, Sr. DR Date of Hearing : 02.09.2022 Date of Pronouncement : 06.09.2022 ORDER PER C.M. GARG, JM: This Miscellaneous Application u/s 254 of the IT Act has been filed seeking rectification in the Tribunal order dated 31.10.2018 in ITA No.3504/Del/2018 for AY 2009-10. 2. The sole ground raised by the Revenue is that as per para 8(a) of CBDT Circular No.21 of 2015 dated 10.12.2015, notwithstanding the fact that the tax effect is below Rs.10 lac or Rs.20 lakh under subsequent Circular No.3 of 2018 of 11.07.2018, the MA Nos.375/Del/2018 2 appeal of the Revenue has to be heard and decided on merits. The ld. Sr. DR, drawing our attention towards the said sub-clause (a) of Clause 8 of CBDT Circular (supra) submitted that where the Constitutional validity of the provision of an Act or Rule is under challenge by the Revenue, then, the appeal filed by the Revenue Department has to be heard and decided on the said legal ground without taking cognizance of the factum that the tax effect is less than Rs.20 lakh therein. The ld. Sr. DR lastly submitted that the Tribunal order may kindly be recalled and the appeal of the Revenue may be adjudicated on merits. 3. The non-applicant assessee Shri Jaikaran Singh is present in person who submitted that he has no sufficient means to appoint any authorized representative, therefore, he is appearing himself and wants justice. 4. On careful consideration of the above-noted submissions, we take cognizance of sub-clause (a) of clause 10 of CBDT Circular No.3/2018 (supra) which reads as follows:- “10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: (a) Where the Constitutional validity of the provisions of an Act or Rule IS under challenge, or” 5. This Miscellaneous Application has been filed by the Revenue on the strength of above exception clause wherein it has been provided that where the Constitutional validity of the provisions of an Act or Rule is under challenge, then, the issue should MA Nos.375/Del/2018 3 be contested on merits by the Department notwithstanding that the tax effect involved is less than the monetary limit specified in para 3 of the same Circular or there is no tax effect. In the present case, on being asked by the Bench, the ld. Sr. DR did not dispute that the tax effect in the Revenue’s appeal No.3504/Del/2018 for AY 2009-10 was less than Rs.20 lakh and CBDT Circular No.3/2018 (supra) para 3 provides that the monetary limit for filing the appeal by the Revenue before the Income-tax Appellate Tribunal is Rs.20 lakhs or more. Therefore, the SMC Bench of the Tribunal dismissed the appeal of the Revenue by passing order dated 31.10.2018. This fact has not been controverted by the ld. Sr. DR in any manner. 6. However, when we carefully perused the grounds raised by the Revenue in the said appeal, it is clearly discernible that the Department has challenged the first appellate order on various grounds and in ground No.7 it has been mentioned that the appeal has been preferred as per para 8(a) of CBDT Circular No.21/2015 dated 10.12.2015 which is quite similar to the clause 10(a) of subsequent CBDT Circular No.03/2018 (supra). On being asked by the Bench, the ld. Sr. DR could not show us as to the Constitutional validity of which provision or rule has been challenged by the Revenue in the said appeal, ITA No.3504/Del/2018. Therefore, I decline to agree with the contention of the Sr. DR that the appeal of the Revenue falls within the exceptional clause 10(a) of CBDT Circular No.03/2018 and, therefore, the Revenue should be allowed to contest the appeal on merits notwithstanding that the tax effect entailed is less than the monetary limits specified by para 3 of the same Circular. In my humble MA Nos.375/Del/2018 4 understanding, this exception, in favour of the Revenue may be applicable to the appeals filed by the Revenue before the Hon’ble Supreme Court and before the Hon’ble High Court which are empowered to evaluate and adjudicate Constitutional validity of the provisions of an Act or Rule. I am conscious that this Tribunal has no right to consider, evaluate and adjudicate the Constitutional validity of the provisions of an Act or Rule. At the cost of repetition, I may again point out that on careful reading of the grounds raised by the Revenue, I am unable to see any ground challenging the Constitutional validity of an Act or Rule, therefore, the Miscellaneous Application filed by the Revenue being devoid of merits is dismissed. 7. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open court on 06. 09.2022. Sd/- (C.M. GARG) JUDICIAL MEMBER Dated: 06 th September, 2022 dk Copy forwarded to 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi