Deepak Saxena, New Delhi vs Department Of Income Tax

Income Tax Officer, Sh. Deepak Saxena, B-603, Ward 43(3), New Delhi Vs. Mod Apartments, Plot No.61, Near Dharmshila Cancer Hospital Vasundhra Enclave, Delhi (Appellant) (Respondent)

Appellant by : Pawinder Kaur, Sr. DR Respondent by : Satish Aggarwal, CA

Date of Hearing 17.12.2014 Date of pronouncement 25.02.2015

ORDER

PER A. T. VARKEY, JUDICIAL MEMBER

This appeal by the Department is directed against the order dated 21.11.2011 of ld CIT(A) XXI, New Delhi for the Assessment Year 2006-07.

2. The grounds raised in the appeal of the Department read as under:-

"1. On the facts and in the circumstances of the case, the ld CIT(A)- XXI, New Delhi erred in deleting the penalty u/s 271(1)(c) of the Income Tax Act, 1961, of the Rs.3,31,784/- for concealment of income and furnishing inaccurate particulars, levied by the Assessing Officer, by accepting the only reasonings given by the assessee that the tax was deducted at source and without considering the facts the relevant income for the year was not included in the return of income."

3. During the course of hearing, Ld. AR for the assessee at the very outset stated that the tax effect in this appeal is less than Rs. 4,00,000/-, therefore, the department ought not to have filed this appeal in view of the circular issued by the CBDT and the provisions contained in section 268A of the Income Tax Act 1961 (hereinafter to be referred as 'the Act').

4. After considering the submissions of both the parties and the material on record, it is noticed that as per the CBDT Instruction. The monetary limit for filing appeal by the revenue has been prescribed. The monetary limit Page 2 of 3

prescribed before ITAT is Rs.4 lakhs and it is clarified in the said instruction that the same applies in respect to penalty appeal also as "in case of penalty order, the tax effect will mean quantum of penalty which is ordered to be deleted or reduced in the order to be appealed against" In this case the penalty ordered to be deleted by the ld CIT(A) is for a sum of Rs.3,31,784/- which is less than the monetary limit prescribed by the said instruction, we take notice 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 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 Page No. 5 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."

7. It is not in dispute that the Board's instruction or directions issued to the other income-tax authorities are 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.

Page 3 of 3 13. It is noticed that the CBDT has issued Instruction No.3 of 2011 dated 09.02.2011, by which the CBDT has revised the monetary limit to Rs.3,00,000/- for filing the appeal before the Tribunal which applies to penalty appeal also.

8. Similarly, the Hon'ble Delhi High Court in the case of CIT vs. Delhi Race Club Ltd. in ITA No. 128/2008, order dated 03.03.2011 by following the earlier order dated 02.08.2010 in ITA No. 179/1991 in the case of CIT Delhi-III vs. M/s P.S. Jain & Co. held that such circular would also be applicable to pending cases.

9. Thus, from the ratio laid down by the Hon'bl 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 of 2014 dated 10th July, 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. 4,00,000/- and is applicable to penalty matters also as aforesaid in para 5.

10. In view of the above, without going into merit of the case, we dismiss the appeal filed by the Revenue.

11. In the result, appeal of the Revenue is dismissed.

Order pronounced in the open court on 25.02.2015.

-Sd/- -Sd/- (S.V. MEHROTRA) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated:25/02/2015

A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi