The Assisatant Commissioenr of Income-tax, Hoshiarpur V. Sh. Maninder Singh Cheema, Hoshiarpur

MA 8/ASR/2019

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8447 (ITAT-AMRITSAR)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-11-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-11-2022
• Assessment Year: misc
• Appeal Filed On: 27-11-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Tax effect
• Section: 68; 268A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER M. A. No. 08/Asr/2019 (Arising out of ITA No. 720/Asr/2013) Assessment Year: 2008-09 Asstt. Commissioner of Income Tax, Hoshiarpur Circle, Hoshiarpur Vs. Sh. Maninder Singh Cheema, H. No. 298, St. No. 20, Guru Nanak Nagar, Hoshiarpur [PAN: AEYPC 4778B] (Appellant) (Respondent) Appellant by : Sh. Surinder Mahajan, CA Respondent by: Sh. Rajiv Wadhera, Sr. DR Date of Hearing: 11.11.2022 Date of Pronouncement: 16.11.2022 ORDER Per Dr. M. L. Meena, AM: The captioned miscellaneous application was filed by the Revenue, arising out of the Tribunal dated 23.08.2018 in ITA No. 720/Asr/2013 for Assessment Year 2008-09. 2. The department has raised the objections to the ITAT order dismissing the appeal of the Revenue in limine as not maintainable being covered by section 268A read with the Board Instruction No. 3/2018 fixing MA No. 08/Asr/2019 Asstt. CIT v. Maninder Singh Sheema 2 monetary limit for filing the appeal before the tribunal at Rs. 20 lacs. The ld. DR for the department has argued that the Hon’ble ITAT Amritsar Bench in the case of the assessee itself for the assessment year 2007-08 has upheld the addition made by the AO u/s 68 of the Income Tax Act, 1961 on the same issue, i.e., on account of earnest money amounting to Rs. 10 lacs in ITA No. 719/Asr/2013 dated 31.07.2018. Accordingly, he has requested to recall the order of the ITAT in view of Instruction No. 3/2018 in view of the CBDT Instruction No. 3/2018. 3. Per contra, the ld. counsel for the assessee argued that the Hon’ble Tribunal has been justified in dismissing the appeal of the department in limine after considering the CBDT Instruction No. 3/2018. The ld. AR has referred to para 10 of the said circular which reads as under: “3. Para 10 of the said Circular provides that adverse judgments relating to the issues enumerated in the said para should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 thereof or there is no tax effect. Para 10 of the Circular No. 3 of 2018 dated 11.07.2018 is hereby amended as under: “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 MA No. 08/Asr/2019 Asstt. CIT v. Maninder Singh Sheema 3 (b) Where Board’s order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where addition relates to undisclosed foreign income/undisclosed foreign assets (including financial assets)/ undisclosed foreign bank account. (e) Where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI/ED/DRI/SFIO/Directorate General of GST Intelligence (DGGI). (f) Cases where prosecution has been filed by the Department and is pending in the court.” 4. Having heard both the sides and perusal of the miscellaneous application and the impugned order. It is noted that the department’s appeal has been rightly dismissed by the tribunal on tax effect as in the instant appeal, disputed tax involved was being below Rs. 20 lacs, i.e., threshold monetary limit applicable for the Revenue appeal before the tribunal u/s 268A of the Act as per the latest CBDT Instruction No. 3/2018 dated 11.07.2018. Further, the issues raised by the Revenue in the appeal are not covered under any exceptions given in para 10 of the aforesaid circular dated 11.07.2018. In our view, the instant appeal is covered by section 268A read with the CBDT instruction cited (supra). In the said appeal, we find no apparent mistake in the order of the tribunal, therefore, MA No. 08/Asr/2019 Asstt. CIT v. Maninder Singh Sheema 4 the miscellaneous application filed by the Revenue is dismissed as not maintainable. 5. In the result, the miscellaneous application filed by the Revenue is dismissed. Order pronounced in the open court on 16.11.2022 Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order