Anita Gusian, New Delhi vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'A', NEW DELHI Before Sh. N. K. Saini, AM And Sh. George George K., JM ITA No. 4748/Del/2012 : Asstt. Year : 2009-10 Income Tax Officer, Vs Ms. Anita Gusain, Ward 43(2), B-13, Ambedkar Colony, Chettar Pur New Delhi Delhi-110071 (APPELLANT) (RESPONDENT)

CO No. 41/Del/2013 : Asstt. Year : 2009-10 Ms. Anita Gusain, Vs Income Tax Officer, B-13, Ambedkar Colony, Chettar Pur Ward 43(2), Delhi-110071 New Delhi (APPELLANT) (RESPONDENT) PAN No. AJHPG8941J

Assessee by : Sh. Manoj Kumar, CA Revenue by : Smt. Parwinder Kaur, Sr. DR

Date of Hearing : 08.01.2015 Date of Pronouncement : 08.01.2015

ORDER

Per Bench:

The appeal by the department and the Cross Objection by the assessee are directed against the order dated 15.06.2012 of ld. CIT(A)-XXX, New Delhi.

2. Firstly we will deal with ITA No. 4748/Del/2012. The only effective ground raised in this appeal read as under:

2 ITA No. 4748/Del/2012 Anita Gusain

"1. That on the facts and circumstances of the case and in law the Ld. CIT(A) has erred in deleting the addition of Rs. 13,00,000/- made by AO on account of unexplained cash deposit in the bank account. "

3. During the course of hearing, learned counsel for the assessee at the very outset stated that the department ought not to have filed this appeal as the tax effect in this appeal is less than Rs. 4,00,000/-. The Ld. D.R., although supported the order of the Assessing Officer, but could not controvert the above contention of the learned counsel for the assessee that tax effect in this appeal is less than Rs.4,00,000/-.

4. After considering the submissions of both the parties and the material on record, it is noticed that Section 268A has been inserted by the Finance Act, 2008 with retrospective effect from 01/04/99. The provisions contained in section 268A read as under:

"268A. (1) The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application for reference by any income- tax authority under the provisions of this Chapter. (2) Where, in pursuance of the orders, instructions or directions issued under sub-section (1), an income-tax authority has not filed any appeal or application for reference on any issue in the case of 3 ITA No. 4748/Del/2012 Anita Gusain

an assessee for any assessment year, it shall not preclude such authority from filing an appeal or application for reference on the same issue in the case of--

(a) the same assessee for any other assessment year; or

(b) any other assessee for the same or any other assessment year.

(3) Notwithstanding that no appeal or application for reference has been filed by an income-tax authority pursuant to the orders or instructions or directions issued under sub-section (1), it shall not be lawful for an assessee, being a party in any appeal or reference, to contend that the 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 directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.

(5) Every order, instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-sections (2), (3) and (4) shall apply accordingly.]"

5. It is not in dispute that the Board's instruction or directions issued to the other income-tax authorities are 4 ITA No. 4748/Del/2012 Anita Gusain

binding on those authorities, therefore, the department ought not to have filed the appeal in view of the above mentioned section 268A since the tax effect in the instant case is less than the amount prescribed for not filing the appeal.

6. It is noticed that the CBDT has issued Instruction No.5 of 2014 dated 10.07.2014, by which the CBDT has revised the monetary limit to Rs. 4,00,000/- for filing the appeal before the Tribunal.

7. Keeping in view the CBDT Instruction No.5 of 2014 dated 10.07.2014 and also the provisions of Section 268A of Income Tax 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 following decisions of Hon'ble Punjab & Haryana High Court :-

1. CIT v Oscar Laboratories P. Ltd (2010) 324 ITR 115 (P&H)

2. CIT v Abinash Gupta (2010) 327 ITR 619 (P&H)

3. CIT v Varindera Construction Co. (2011) 331 ITR 449 (P&H)(FB)

8. Similarly, the Hon'ble Delhi High Court in the case of CIT v. Delhi Race Club Ltd. in ITA No.128/2008, order dated 03.03.2011 by following the earlier order dated 02.08.2010 in 5 ITA No. 4748/Del/2012 Anita Gusain

ITA No.179/1991 in the case of CIT Delhi-III v. M/s. P.S. Jain & Co. held that such circular would also be applicable to pending cases.

9. From the ratio laid down by the Hon'ble Delhi High Court, it is clear that the instructions issued in the Circulars by CBDT are applicable for pending cases also. Therefore, by keeping in view the ratio laid down in the aforesaid referred to cases, we are of the considered view that Instruction No.5/14 dated 10.07.2014 issued by the CBDT are applicable for the pending cases also and in the said instructions, monetary tax limit for not filing the appeal before the ITAT is Rs. 4.00 lakhs. Accordingly, without going into merit of the case, we dismiss this appeal of the department on account of tax effect being less than Rs. 4.00 lakhs.

10. As regards to the Cross Objection filed by the assessee is concerned. The ld. Counsel for the assessee stated that he has the instruction not to press the Cross Objection and gave in writing as under:

"Since departmental appeal is not maintainable. Cross Objection are infructuous/academic and withdrawn." 6 ITA No. 4748/Del/2012

Anita Gusain

11. The ld. DR did not object if the CO is dismissed as withdrawn. In view of the above the Cross Objection filed by the assessee is dismissed as withdrawn.

12. In the result, the appeal of the department and Cross Objection of the assessee are dismissed. (Order Pronounced in the Court on 08/01/2015)

Sd/- Sd/-

(George George K.) (N. K. Saini) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 08/01/2015 *Subodh* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5.DR: ITAT ASSISTANT REGISTRAR

Initial Date 1. Draft dictated on 08.01.2015 PS 2. Draft placed before author 08.01.2015 PS 3. Draft proposed & placed before the JM/AM second member 4. Draft discussed/approved by Second JM/AM Member. 5. Approved Draft comes to the Sr.PS/PS PS/PS 6. Kept for pronouncement on PS 7. File sent to the Bench Clerk PS 8. Date on which file goes to the AR

9. Date on which file goes to the Head Clerk.

10. Date of dispatch of Order.