Sab Properties (P) Ltd., New Delhi vs Department Of Income Tax

Income Tax Officer, vs. M/s Sab Properties (P) Ltd., Ward 7(1), Room No. 305, SAB House, 3/8, CR Building, New Delhi Asaf Ali Road, New Delhi - 110092 PAN: AAJCS3631B (Appellant) (Respondent)

Appellant by : Sh. BRR Kumar, Sr. DR Respondent by : None

Date of Hearing : 10-02-2015 Date of Order : 10-02-2015

ORDER

PER H.S. SIDHU, J.M.

This appeal by the Department is directed against the Order dated 23/10/2012 of Ld. CIT(A)-X, New Delhi.

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

1. "The Ld. CIT(A) erred on facts and in law in cancelling penalty of Rs. 3,27,500/- u/s. 271D of the Act.

2. The CIT(A) erred in concluding that there was reasonable cause merely on the submission of the assessee as there was no urgency evident from any material on record.

3. The appellant craves, leave or reserving the right to amend modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal."

ITA No. 5/DEL/2013 (ITO VS. SAB PROPERTIES (P) LTD.) 2 3. Notice was sent to the assessee on the address given by it, however, none appeared on behalf of the assessee nor any request for adjournment is filed. In view of the above, we are of the considered opinion that no useful purpose would be served to adjourn the case again and again. Therefore, we are deciding the Revenue Appeal's exparte qua assessee, after hearing the Ld. DR and perusing the records available on record. At the threshold we find 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 the section 268A of the Income Tax Act, 1961 (hereinafter to be referred as the Act).

4. Ld. DR 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/-.

5. 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 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 ITA No. 5/DEL/2013 (ITO VS. SAB PROPERTIES (P) LTD.) 3

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."

6. 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.

7. It is noticed that the CBDT has issued Instruction No. 5/2014 dated 10th July, 2014, by which the CBDT has revised the monetary limit to Rs. 4,00,000/- for filing the appeal before the Tribunal.

8. 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 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).

9. 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.

ITA No. 5/DEL/2013 (ITO VS. SAB PROPERTIES (P) LTD.) 4 10. 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/-.

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

the appeal filed by the Revenue.

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

Order pronounced in the open court on 10/2/2015.

Sd/- Sd/-

(J.S. REDDY) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: 10/2/2015

*SR BHATNAGAR*

Copy forwarded to: - 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY By Order,

ASSISTANT REGISTRAR