ITO, New Delhi V. Shri Gaurav Singhal, New Delhi

MA 94/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6906 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 07-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH FRIDAY NEW DELHI) BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER M.A. NO.94/D/2011 (I.T.A. NO.1524/DEL/2010) ASSESSMENT YEAR: 2003-04 INCOME TAX OFFICER, VS. SHRI GAURAV SINGHAL, WARD-19 (2), H-24, GROUND FLOOR, ASHOK NEW DELHI VIHAR, PHASE-1, NEW DELHI PAN NO. (APPLICANT) (RESPONDENT) APPLICANT BY : SMT. PRATIMA KAUSHIK, DR RESPONDENT BY : SHRI ANIL SHARMA, ADVOCATE ORDER PER RAJPAL YADAV, JM: THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED A T THE INSTANCE OF REVENUE POINTING AN APPARENT ERROR IN T HE ORDER OF TRIBUNAL DATED 5 TH AUGUST 2010 PASSED IN I.T.A. NO.1524/D/2010. IT IS PLEADED IN THE APPLICATION T HAT APPEAL OF THE REVENUE HAS BEEN DISMISSED BY THE TRIBUNAL O N THE GROUND THAT TAX EFFECT INVOLVED IN THE APPEAL IS LE SS THAN `2 LACS, HENCE, IT IS NOT MAINTAINABLE IN VIEW OF THE BOARDS INSTRUCTIONS NO. DATED 16 TH MAY, 2008. THE TAX EFFECT IS OF `2,11,304/- INSTEAD OF `1,72,964/- REFERRED TO BY T HE TRIBUNAL IN ITS ORDER. IT IS ALSO CONTENDED THAT AN ADDITIO N OF `7 LACS 2 HAS BEEN DELETED BY THE CIT(A) AND THE REVENUE HAS FILED APPEAL AGAINST THIS DELETION. THE TAX EFFECT ON AN AMOUNT OF `7 LACS WOULD BE MORE THAN `2 LACS I.E., `2,11,304/ -. 2. THE LEARNED DR RELIED ON THE APPLICATION AND PRA YED THAT ORDER OF THE TRIBUNAL DATED 5 TH AUGUST, 2010 BE RECALLED AND APPEAL BE HEARD ON MERIT. ON THE OTHER HAND, L EARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HAS PROD UCED ITNS 150 I.E. COMPUTATION OF TAX DEMAND ISSUED BY T HE ASSESSING OFFICER ON THE DATE OF HEARING OF THE APP EAL. THE DEPARTMENT HAS NOT FILED ANY COMPUTATION ALONG WITH THE APPLICATION. THE TAX EFFECT IS NOT MORE THAN `2LAC S. HE PRAYED THAT APPLICATION BE REJECTED. HE FURTHER CO NTENDED THAT EVEN IF FOR THE SAKE OF ARGUMENTS, IT IS PRESU MED THAT TAX EFFECT WAS MORE THAN `2 LACS THEN ALSO THE BOAR D HAS REVISED THE MONITORY LIMIT FOR CHALLENGING THE ORDE R OF CIT(A) BEFORE THE TRIBUNAL. IN THE REVISED LIMIT, ORDER O F THE CIT(A) WOULD NOT BE CHALLENGED IF THE TAX EFFECT IS LESS T HAN `3 LACS. RECALLING OF THE TRIBUNALS ORDER WOULD BE A FUTILE EXERCISE BECAUSE THE APPEAL WOULD AGAIN MEET THE SAME FATE. HE REFERRED INSTRUCTION NO.3 ISSUED IN THE MONTH OF FE BRUARY, 2011 AND FURTHER SUBMITTED THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB IN I.T.A. NO.12 8/2008, ORDER DATED 3 RD MARCH, 2011 AND CIT VS. M/S P.S. JAIN & CO. IN I.T.A. NO. 179/1991, ORDER DATED 2 ND AUGUST, 2010 HAS HELD THAT THESE INSTRUCTIONS WOULD BE APPLICABLE ON PEND ING APPEALS. 3 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. ON PERUSAL OF APPEAL FILE IT REVEALES THAT LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD COPY OF ITNS 150 WHICH EXHIBIT THE COMPUTATI ON OF INCOME TAX. THIS COMPUTATION WAS MADE ON 3 RD DECEMBER, 2007 I.E., ALONG WITH THE ASSESSMENT ORDER. IT DEP ICTS THE TOTAL TAX INCLUDING SURCHARGE PAYABLE BY THE ASSESS EE IS `1,72,962/-. AFTER GIVING CREDIT OF TAXES ALREADY PAID AT `1,558/-, A DEMAND OF `1,71,404/- WAS WORKED OUT. THEREAFTER ASSESSING OFFICER HAS COMPUTED THE INTER EST PAYABLE BY THE ASSESSEE U/S 234B. IT HAS BEEN WORK ED OUT AT `1,00,269/- AND IN THIS WAY, THE TOTAL DEMAND OF `2,71,673/- HAS BEEN RAISED. ON THE BASIS OF THIS COMPUTATION, WE HAVE DISMISSED THE APPEAL OF THE RE VENUE. IN THE MISCELLANEOUS APPLICATION, THE REVENUE HAS S UBMITTED THAT TAX EFFECT IS MORE THAN `2 LACS. IT HAS NOT F ILED ANY COMPUTATION MADE BY THE ASSESSING OFFICER. THE PLE A TAKEN IN THE MISCELLANEOUS APPLICATION IS NOT SUPPORTED B Y ANY COMPUTATION OF FARE DEPICTING RATE OF FARE ETC. APA RT FROM THIS LAPSE, WE ARE ALSO OF THE VIEW THAT EVEN IF WE ALLOW THIS MISCELLANEOUS APPLICATION, THE APPEAL OF THE REVENU E WOULD BE AGAIN DISMISSED IN VIEW OF THE LATEST INSTRUCTIO NS ISSUED BY THE BOARD. HONBLE DELHI HIGH COURT IN CIT VS. DELHI RACE CLUB IN I.T.A. NO.128/2008, ORDER DATED 3 RD MARCH, 2011 AND CIT VS. M/S P.S. JAIN & CO. IN I.T.A. NO. 179/1991, ORDER DATED 2 ND AUGUST, 2010 (SUPRA) HAS HELD THAT THESE INSTRUCTI ONS 4 WOULD BE APPLICABLE ON PENDING APPEALS. NO FRUITFU L PURPOSE WILL BE SERVED BY ACCEPTING THIS MISCELLANEOUS APPL ICATION. IT WILL BE A FUTILE EXERCISE. IN VIEW OF THE ABOVE DI SCUSSION, MISCELLANEOUS APPLICATION OF THE REVENUE IS HEREBY REJECTED. 4. IN RESULT, MISCELLANEOUS APPLICATION OF THE REVE NUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19.08.2011. SD/- SD/- ( SHAMIM YAHYA ) ( RAJPAL YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 19.08.2011. NS COPY FORWARDED TO:- 1. INCOME TAX OFFICER, WARD-19(2), NEW DELHI 2. SHRI GAURAV SINGHAL, H-24, GROUND FLOOR, ASHOK VIHAR, PHASE-1, NEW DELHI. 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). 19.08.2011 DATE OF DICTATION 23.08.2011 DATE OF ORDER SIGNED BY THE HON'BLE MEMBER. 19.08.2011 DATE OF ORDER SENT TO THE CONCERNED BENCH 05.09.2011