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Naresh Nandan Prasad, New Delhi vs Department Of Income Tax

Income Tax Appellate Tribunal27 February 2015

Ratio decidendi

The rule this decision rests on

The CBDT instruction No. 5/2014 dated 10.07.2014, which prescribes a monetary limit (tax effect of Rs. 4 lakhs) for the Revenue's filing of appeals before the Tribunal, applies to appeals already pending on the date of the instruction, and the Tribunal is bound to give effect to it in such cases, following the coordinate Bench decision in Deputy Commissioner of Income Tax v. Sushila Saraogi, which the Tribunal adopted in full. Where the tax effect in a Revenue appeal is below the prescribed monetary limit and the Revenue cannot point to any exceptional circumstance or situation mentioned in the Board's instruction justifying the appeal, the appeal is to be dismissed in limine without adjudication on merits.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE INCOME TAX APPELLATE TRIBUNAL(DELHI BENCH 'E' : NEW DELHI)BEFORE SHRI GEORGE GEORGE K, JUDICIAL MEMBERANDSHRI B.C. MEENA, ACCOUNTANT MEMBERITA No.3505/Del./2013ASSESSMENT YEAR : 2009-10

DCIT, Circle 40(1), vs. Sh. Naresh Nandan Prasad New Delhi. 2-Meena Bagh, Maulana Azad Road, New Delhi

(PAN :AKSPP 5738 N)

(APPELLANT) (RESPONDENT)

Date of hearing : 26.02.2015 Date of pronouncement : 27.02.2015

Appellant by : Shri Dhananjay Singh, AR Respondent by : Shri P. Dam Kanunjha, Senior DR

ORDER

PER: GEORGE GEORGE K., JUDICIAL MEMBER :

1. This appeal filed by the revenue emanates from the order of the CIT

(Appeals)-XXX, New Delhi dated 20.03.2013 for the assessment year 2009-10.

2. The assessee had filed an adjournment application. However, it was

noticed that tax effect in the appeal is below the monetary limit prescribed for

filing departmental appeal. The Instruction No.5/14 dated 10.07.2014 mandates

that the tax effect should be above 4 lakhs in a particular case, when revenue

files an appeal to the ITAT, (unless the case come within the ambit of exception 2 ITA NO.3505/Del/2013

circumstance/situation mentioned in the circular). The recent order of the Delhi

Bench of the Tribunal in the case of DCIT Vs. Shri Chetan Prakash Mittal (ITA

No.3323/Del/2010 dated 13.11.2014) had held that Instruction No.5/14 is

applicable to pending cases. The relevant finding of the Tribunal reads as

follows:

(Para 5)

"We have heard rival submissions and perused the material on record. The Tribunal in the case of Deputy Commr. of Income Tax Vs. Sushila Saraogi (supra) after considering the precedents on the subject held instruction No.5/14 issued by the CBDT on 10.07.2014 is applicable to the pending appeals. The Tribunal followed the dictum laid down the judgments of the various High Courts including the two judgments of the Hon'ble Jurisdictional High Court in the case of CIT Vs. M/s P.S. Jain & Co. in ITA No.179/1991 dated 2.8.2010 and in the case of Commissioner of Income Tax vs. Delhi Race Club Ltd. dated 3.3.2011. In view of the order of the Tribunal in the case of Deputy Commissioner of Income Tax vs. Sushila Saraogi which have elaborately considered the identical issue, we hold that instruction No.5/2014 issued by the CBDT on 10.07.2014 is applicable to the pending appeals. In the instant case, the tax effect being below Rs.4 lacs, without going into the issue on merit, we dismiss the appeal of the revenue in liminee. It is to be mentioned that Ld. DR was unable to point out any exceptional circumstances/situation (mentioned in board instruction No.5/2014) for filing an appeal despite the monetary limit being below the prescribed limit."

3. In view of the coordinate Bench order of the Tribunal (Supra), we hold

that instruction no.5/2014 issued by the CBDT on 10.07.2014 is applicable to

the pending appeals. In the instant case, since the tax effect is below Rs.4 lakhs,

without going into the issue on merit, we dismiss the appeal of the Revenue in

limine. Further it is to be mentioned that Ld. DR was unable to point out any 3 ITA NO.3505/Del/2013

exceptional circumstances/situation (mentioned in board instruction No.5/14)

for filing an appeal, despite the tax effect being below the prescribed limit.

4. In the result, appeal of the Revenue is dismissed in limine.

Order pronounced in open court on this 27th day of February, 2015.

Sd/- Sd/- (B.C. MEENA) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated 27th day of February, 2015 Aks.

Copy forwarded to :

1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi

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