Rakesh Yadav, New Delhi vs Department Of Income Tax

1 ITA No. 2390/Del/2013 ACIT vs. Shri Rakesh Yadav

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'F' NEW DELHI

BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI A.T. VARKEY, JUDICIAL MEMBER

ITA No. 2390/Del/2013 Assessment Year: 2009-10

ACIT vs. Shri Rakesh Yadav Circle-38 (1) R/o 62/5-B Ber Sarai, New Delhi. Opp. JNU Campus, New Delhi. (PAN AATPY3814D) (Appellant) (Respondent)

Appellant by: Shri Vikram Sahay, Sr. DR Respondent by: Shri K. Sampath and Shri V Raj Kumar, Advocate

ORDER

PER A.T. VARKEY, JUDICIAL MEMBER

This appeal by the Department is directed against the order dated

10.1.2013 of CIT(A) XXVIII, New Delhi for the asstt. year 2009-10.

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

1. "In the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 4,37,383/- made by AO without appreciating the fact that AO has made the addition after rejection of books of accounts and the assessee has failed to furnish books of accounts and supporting documents and also failed to reconcile his business receipts during the course of the assessment proceedings despite specific direction of the AO.

2. In the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 4,82,448/- made by AO on account of disallowance of loss of the assessee without appreciating the fact that 2 ITA No. 2390/Del/2013 ACIT vs. Shri Rakesh Yadav

the assessee failed to substantiate its claim during the assessment proceedings."

3. During the course of hearing, Ld. Counsel 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. As per the Ld. Counsel the computation of the disputed tax as per ground

No. 1 is Rs. 4,37,383/- and ground 2 is Rs. 4,82,448/-. Therefore the total

amount contested is Rs. 9,19,831/-. So, the tax effect is @ 30% would work out

to be Rs. 2,75,949/- and after adding education cess @ 2% and Higher

Education Cess @ 10%, total comes to Rs. 2,84,226/- only and so is less than

Rs. 3 lakhs only and so the department ought not to have filed the appeal and

prayed that the instant case may be dismissed.

5. On the other hand, the ld. DR although supported the order of AO, but

could not controvert this fact that the tax effect in this appeal is less than Rs.

4,00,000/-.

6. 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 01/04/1999. The relevant 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 3 ITA No. 2390/Del/2013 ACIT vs. Shri Rakesh Yadav

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 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.

8. It is noticed that the CBDT has issued Instruction No. 5/2014 dated 10 th

July, 2014, by which the CBDT has revised the monetary limit to Rs. 4,00,000/-

for filing the appeal before the Tribunal.

9. Keeping in view the CBDT Instruction No. 5 of 2014 dated 10th July, 2014

and also the provisions of section 268A of Income Tax Act, 1961, we are of the 4 ITA No. 2390/Del/2013 ACIT vs. Shri Rakesh Yadav

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

the Hon'ble Punjab & Haryana High Court:

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

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

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

10. 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.

11. 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 case, 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/-.

12. In view of the above, without going into merit of the case, we dismiss the

appeal filed by the Revenue.

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

Order pronounced in the open court on 09th January, 2015.

-Sd/- -Sd/- (G.D. AGRAWAL) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated:09th January, 2015 5 ITA No. 2390/Del/2013 ACIT vs. Shri Rakesh Yadav

'veena' Copy of order forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR By Order Deputy Registrar, ITAT