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Income Tax Appellate Tribunal, DELHI BENCH ‘G’ NEW DELHI
Before: SHRI SUDHANSHU SRIVASTAVA & SHRI ANADEE NATH MISSHRA
PER SUDHANSHU SRIVASTAVA, J.M. This appeal is preferred by the department against the order dated 9.8.2016 passed by the Ld. Commissioner of Income Tax (Appeals)-28, New Delhi for assessment year 2011-12 and challenges the action of the ld. Commissioner of Income Tax(A) in deleting the addition made by the Assessing Officer of Rs. 51,31,257/- on account of disallowance u/s 40(a)(i) in respect of payment made to non-residents. Admittedly, the tax effect in the appeal is below the monetary limit of Rs. 20 lakhs.
ITA 5843/DEL/2016 Assessment year 2011-12 2.1 In terms of CBDT Circular No. 3/2018 dated 11th July, 2018 read with Section 268 A of the Income Tax Act, 1961, this appeal by the Revenue should have been withdrawn or should not have been pressed by the Revenue.
2.2 We also note that vide CBDT’s Instructions dated 20.08.2018 bearing F.No. 279/Misc.142/2007-ITJ(Pt), there has been an amendment to para 10 of the Circular No. 3 of 2018 dated 11.07.2018 wherein the said para 10 has been amended as under:-
“10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect.
(a) Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) Where Board’s order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where addition relates to undisclosed foreign income/undisclosed foreign assets (including financial assets)/undisclosed foreign bank account.
(e) Where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI/ ED/DRI/SFIO/Directorate General of GST Intelligence (DGGI).
ITA 5843/DEL/2016 Assessment year 2011-12
(f) Cases where prosecution has been filed by the Department and is pending in the Court. ”
2.3 However, after going through the records before us, we are of the opinion that apparently the Department’s Appeal is not covered by any of the aforesaid exceptions as enumerated in the aforesaid amendment to the Instructions and, therefore, delaying the disposal of the appeal by waiting for the Report from the Field Officers will not be in true spirit of the Circular. Accordingly, we deem it fit to treat this Appeal as dismissed with the liberty to the Department to seek recall of this order by filing a Misc.
Application before us in case the Department’s Appeal falls in any of the above exceptions. Accordingly, in view of the CBDT’s Circular No. 3 of 2018 dated 11.7.2018, the appeal by the Revenue is dismissed in limine.
In the result, the appeal of the revenue stands dismissed.
Order pronounced in the open court on 22nd JULY, 2019.