H K Vivek Overseas Pvt. Ltd., New Delhi vs Assessee

Income Tax Officer, vs M/s H.K. Vivek Overseas Pvt. Ltd., Ward 12(4), H-2, Hauz Khas, New Delhi-110016 New Delhi.

C.O. No.91/Del/2013 (IN ITA No.5558/Del/2012) ASSTT.YEAR: 2007-08

M/s H.K. Vivek Overseas Pvt. Ltd., vs Income Tax Officer, New Delhi. New Delhi. (Appellant) (Respondent) Appellant by: Shri T. Vasanthan, Sr. DR Respondent by: Shri Ravi Pratap Mull, Adv.

ORDER

PER C.M. GARG, JUDICIAL MEMBER

This appeal of the revenue as well as C.O. of the assessee are directed

against the order of the CIT(A)-XV, New Delhi dated 2.8.2012 in Appeal No.

389/09-10 for AY 2007-08.

2. At the very outset, ld. Counsel of the assessee submitted a calculation of

tax effect involved in the appeal and grounds raised by the revenue which

1 ITA No. 5558/Del/2012 Asstt.Year: 2007-08

comes to Rs. 3,53,430. The ld. DR fairly accepted that the said tax effect as

calculated by the assessee is correct in the instant appeal of the revenue.

3. Ld. Counsel of the assessee submitted that as per latest CBDT Circular

No. 5 of 2014 dated 10.7.2014, the mandatory limit has been revised by CBDT

to Rs. 4,00,000 for filing appeal by the revenue before the Tribunal, therefore,

the present appeal of the revenue is not maintainable and the same deserves to

be dismissed. Ld. DR submitted that the present appeal was filed on 2.11.2012

when CBDT Instruction No. 5 of 2014 (supra) was not in existence and,

therefore, the present appeal is maintainable as per CBDT instructions effective

on the date of filing of appeal.

4. On careful consideration of above submissions and careful perusal of the

relevant material placed on record, we note that the CBDT Instruction or

direction issued to the income tax authorities are binding on them, therefore, the

department ought not to have filed the appeal in which tax effect is less than Rs.

4 lakh as mentioned in CBDT Instruction No. 5 of 2014. On this issue, we

respectfully take cognizance of the decision of Hon'ble Jurisdictional High

Court of Delhi in the case of CIT vs Delhi Race Club Ltd. in ITA No. 128/2008

order dated 03.03.2011 wherein their lordships, by following the earlier order of

Hon'ble High Court in the case of CIT vs M/s P.S. Jain & Co. in ITA No.

179/1991 dated 2.8.2010, held that such Circular would also be applicable to the

2 ITA No. 5558/Del/2012 Asstt.Year: 2007-08

pending cases, meaning thereby that CBDT Instruction No. 5 of 2014 is also

applicable to the present appeal which is pending.

5. From the ratio laid down by the Hon'ble Delhi High Court, it is clear that

Instruction No. 5 of 2014 (supra) is applicable for pending cases also.

Therefore, keeping in view the ratio laid down in the aforesaid cited cases, we

are of the considered view that Instruction No. 5 of 2014 dated 10.7.2014 issued

by CBDT is applicable to the present case and tax effect limit for filing the

appeal before the Tribunal is Rs. 4 lakh or more, meaning thereby the cases

which have tax effect less than Rs. 4 lakh are not maintainable before the

Tribunal. In view of above, we are inclined to hold that the present appeal of

the revenue is not maintainable due to low tax effect less than the prescribed

limit, therefore, we dismiss the same in limine being not maintainable.

C.O. of the assessee

6. Ld. Counsel of the assessee submitted that the cross objection of the

assessee may kindly be adjudicated on merits. Ld. DR contended that since the

appeal of the revenue is not found to be maintainable, the Cross objection of the

assessee does not survive for consideration. On careful consideration of above

submissions, we are of the considered view that since the appeal of the revenue

has been dismissed in limine due to low tax effect, then the CO of the assessee

cannot be considered and the same does not survive for adjudication and we

dismiss the same as being infructuous.

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7. In the result, the appeal of the revenue and CO of the assessee are

dismissed.

Order pronounced in the open court on 29.04.2015.

Sd/- Sd/-

(R.S. SYAL) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER

DT. 29th APRIL 2015 'GS'

Copy forwarded to:-

1. Appellant 2. Respondent 3. CIT(A) 4. C.I.T. 5. DR By Order

Asstt. Registrar

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