Sanjay Kumar, New Delhi vs Department Of Income Tax

ITO vs Sanjay Kumar Ward-21(4), Room No-D-6, E-15/168, Vikas Bhawan Sector-8, Rohini New Delhi New Delhi (APPELLANT) AKEPK4740P

(RESPONDENT)

Appellant by Sh. B. R. R. Kumar, Sr. DR Respondent by None

Date of Hearing 15.06.2015 Date of Pronouncement .06.2015

ORDER PER DIVA SINGH, JM

The present appeal has been filed by the Revenue assailing the correctness of the order dated 19/1/2012 of CIT (A) XXII pertaining to 2007- 08 assessment year on the following grounds:-

"1. Whether on the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs.12,71,500/- and accepting the additional evidences even when the Assessing Officer in the remand report requested for not admitting the additional evidences.

2. Whether on the facts and circumstances of the case the Ld. CIT(A) has erred in accepting the additional evidences, without affording any opportunity to the assessing officer to cross-check and verify those evidences, in view of provisions of Rule-46A of the Income-tax Act Rules.

2. However, at the time of hearing an adjournment petition has been moved on behalf of the assessee. Considering the fact that the tax effect involved in the present appeal was only Rs.3,60,000/- the adjournment request was 2 ITA NO.1234.Del.12

rejected and after hearing the Ld. SR. DR, Dr. B. R. R. Kumar following the judicial precedent the departmental appeal was directed to be dismissed in the open court at the time of hearing itself.

3. Addressing the reasons for the said decision the record shows that the tax effect in this appeal is less than Rs.4,00,000/- as per the latest 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) the department ought not to have filed this appeal. The said position was not controverted by the Ld. Sr. DR although he supported the order of the A.O.

4. Considering the submissions of the ld. D.R. and the material on record and the fact 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) T he Board may, f rom time to time, issue orders, instruc tions or directions to other inco me- tax authorities, f ixing such monetary limits as it may dee m f it, f or the purpose of regulating f iling of appe al or application f or ref erence by any inco me- tax au thority under the provis ions of this Chapter.

(2) Where, in pursu ance of the orders, instructions or directions issued under sub-sec tion (1), an inco me-tax au thor ity has not f iled any appe al or applic ation f or ref erence on any issue in the c ase of an assessee f or any assess ment ye ar, it shall no t preclude such author ity f rom f ilin g an appeal or applic ation f or ref erence on the same issue in the case of --

(a) the s ame assessee f or any other assess ment year; or

(b) any other assessee f or the s ame or any other assess men t year.

(3) Notwiths tanding th at no appeal or appl ication f or ref erence has been f iled by an inco me- tax au thority pursu ant to the orders or instructions or direc tions issued under sub-section (1), it shall not be l awf ul f or an assessee, being a party in any appe al or ref erence, to contend that the inco me-tax authority h as 3 ITA NO.1234.Del.12

acqu iesced in the decis ion on the disputed issue by no t f il ing an appe al or applic ation f or ref erence in any c ase.

(4) T he Appellate T ribunal or Court, he aring such appeal or ref erence, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circu ms tances under wh ich such appeal or application f or ref erence was f iled or not f iled in respect of any c ase.

(5) Every order, ins truction or direction wh ich has been issued by the Board f ixing mone tary limits f or f iling an appeal or appl ication f or ref erence sh all be dee med to have been issued under sub-sec tion (1) and the provis ions of sub-sections (2), (3) and (4) sh all apply accordingly.]"

5. It is not in dispute that the Board's instruction or directions issued to the income-tax authorities are binding on these authorities, therefore, the present appeal in view of the above said provisions mentioned in section 268 A of the Act ought not to have been filed by the Department since the tax effect in the instant case is less than the amount prescribed for not filing the appeal.

6. It is noticed that the CBDT has issued Instruction No.5 of 2014 dated 10.07.2014, by which the CBDT has revised the monetary limit to Rs. 4,00,000/- for filing the appeal before the Tribunal.

7. Keeping in view the CBDT Instruction No.5 of 2014 dated 10.07.2014 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 Hon'ble Punjab & Haryana High Court:-

(1) C IT v Oscar Labor atories P. Ltd (2010) 324 IT R 115 (P&H)

1. CIT v Abin ash Gupta (2010) 327 IT R 619 (P&H) 4 ITA NO.1234.Del.12

2. CIT v V arindera Construc tion Co. (2011) 331 IT R 449 (P&H)(FB).

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

9. From the ratio laid down by the Hon'ble 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.5/14 dated 10.07.2014 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 I TAT is Rs. 4.00 lakhs.

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

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

(Order Pronounced in the Court on 19/06/2015).

The order is pronounced in the open court on 19th of June 2015.

Sd/- Sd/-

(N. K. SAINIA) (DIVA SINGH)

ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: 19/06/2015

*R. Naheed* 5 ITA NO.1234.Del.12

Copy forwarded to:

1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR

ITAT NEW DELHI

Date

1. Draft dictated on 15.06.2015 PS

2. Draft placed before author 16.06.2015 PS

3. Draft proposed & placed before the JM/AM second member

4. Draft discussed/approved by Second JM/AM Member.

5. Approved Draft comes to the .06.2015 PS/PS Sr.PS/PS

6. Kept for pronouncement on PS

7. File sent to the Bench Clerk .06.2015 PS

8. Date on which file goes to the AR

9. Date on which file goes to the Head Clerk.

10. Date of dispatch of Order. 6 ITA NO.1234.Del.12