ACIT, NEW DELHI vs. M/S. NTPC SAIL POWERL CO. LTD., NEW DELHI

[A]. This appeal has been filed by Revenue against the order dated 16.01.2017 passed by Learned Commissioner of Income Tax(Appeals)-39, New Delhi [in short, “Ld.CIT(A)”] pertaining to assessment year 2013-14. In this appeal, the tax effect is less than the monetary limit fixed by the Central Board of Direct Taxes (in short “CBDT”) in its Circular No.17/2009 dated 08.08.2019. The Revenue has raised following grounds of appeal:-

(1) Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in deleting disallowance of Rs. 10,99,211/- u/s 40(a)(ia) of the Income Tax Act 1961 (the Act) on account of non- deduction of TDS on ’’Bank Guarantee expenses” by ignoring the ITA No: - 3046/Del/2017 contents of Notification No. 56/2012 of the CNBDT in this regard issued vide F.No. 275/53/2012-IT (B) /SO 3069 (E) dated 31.12.2012 and also by ignoring the fact that the said notification had come into force w.e.f. 1st January, 2013? (2) Whether on facts and in circumstances of the case, the Ld. CIT (A) is legally justified in deleting disallowance of Rs. 1,12,10,000/- on account of depreciation claimed on the assets not owned by the assessee by ignoring the findings of the Assessing Officer (the AO) in his order that the assessee had not discharged its initial onus by not furnishing any details under explanation-1 to the section 32(1) of the Act? (3) Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in deleting disallowance of Rs. 1,12,10,000/- on account of depreciation claimed on the assets not owned by the assessee and in directing the AO to identify and verify the assets not owned by the assessee ignoring the fact that the assessee had already failed to discharge its initial onus by not furnishing any details in this regard before the AO during assessment proceedings? (4) Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in deleting the disallowance of Rs. 1,12,10,000/- on account of depreciation claimed on the assets not owned by the assessee by accepting the additional evidence during the appellant proceedings without affording an opportunity to the AO of being heard and despite the fact that the assessee had not fulfilled the conditions as laid down under rule 46A of the Income Tax Act (the Rule) ?

[B]. At the outset, it was brought to the notice by learned counsel for the Assessee, at the time of hearing that tax effect in this appeal is below Rs. 50,00,000./-. Vide recent CBDT Circular No.17/2019 dated 08.08.2019 read with earlier CBDT Circular No. 3 of 2018, dated 11.07.2018, minimum threshold limit of tax effect of filing of appeals by Revenue in Income Tax Appellate Tribunal ("ITAT", for short) has been enhanced to Rs. 50,00,000/-. In a subsequent clarification issued by CBDT vide F.No. 279/Misc/M-93/2018-ITJ,

ITA No: - 3046/Del/2017 dated 20/08/2019, it has been clarified by CBDT that the aforesaid revised monetary limit is also applicable to all pending appeals in ITAT. Therefore, in view of the foregoing, we are of the view that this appeal filed by Revenue is not maintainable. The learned Departmental Representative also did not press the appeal.

Accordingly, this appeal is dismissed being not pressed, and also not maintainable, having regard to aforesaid CBDT Circular No. 17/2019 dated 08.08.2019 read with aforesaid CBDT Circular No. 3 of 2018 in the light of aforesaid clarification dated 20/08/2019.

[C]. Before leaving, we clarify that Revenue will be at liberty to approach Income Tax Appellate Tribunal U/s 254(2) of Income Tax Act, 1961 seeking recall of this order and, for restoration of the appeal if it is found that this appeal of Revenue is not covered by aforesaid CBDT Circulars dated 08.08.2019 and 11.07.2018.

[D]. In the result, the appeal by Revenue is dismissed. Our decision was orally pronounced in the Open Court after conclusion of hearing on the date of hearing. Now, this written order is pronounced in Open Court on 04/10/19.