DCIT, NEW DELHI vs. M/S OXIGEN SERVICES INDIA PVT. LTD.,, NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : B-1 : NEW DELHI

BEFORE SHRI I.C. SUDHIR, JM & SHRI L.P. SAHU, AM

Sl.No. ITA/IT(SS)A, CO Appellant Respondent AY/ Assessee By No. Asst. Period 1. 3764/Del/2015 DCIT, Circle 19(1), Oxigen Services India 2006-07 None New Delhi Pvt. Ltd., Unit No.31,Tribhuvan Complex,Ishwar Nagar, New Friends Colony, New Delhi PAN: AABCI1405K 2. 4859/Del/2015 ACIT, Cir.15(1) Landbase India Ltd., 2011-12 Mr. Sambhav Jain New Delhi. 25, Vasant Lok, Vasant Vihar, New Delhi. (PAN: AAACL0053F)

E-2 Block, Civic Engineers’Enclave, Centre, Minto Pitampura, Delhi. Road, New Delhi. (PAN: AAQPG3070N) 8. 454/Del/2015 ACIT, CC-17, E-2, Shri Shantilal Wadhwa, 2007-08 Shri Tarun Kumar, Jhandewalan, New 8194, Sector-B, Pocket- CA Delhi XI, New Delhi. PAN : AAGPW9693M

. 9. 451/Del/2015 ACIT, CC-18, New Anupama Chawla, 2009-10 Shri Pratap Gupta, Delhi. B-5, Madhuban, CA New Delhi. PAN : AALPC1213A 10. 450/Del/2015 ACIT, CC-18, Anupama Chawla, 2008-09 Shri Pratap Gupta, Jhandewalan, B-5, Madhuban, CA New Delhi New Delhi. PAN : AALPC1213A 11. 452/Del/2015 ACIT, CC-18, Baldev Raj Chawla, B- 2005-06 Shri Pratap Gupta, Jhandewalan, 5, Madhuban, New CA New Delhi Delhi. PAN: AACCC3327K 12. CO 249/D/2015 Baldev Raj Chawla ACIT, CC-18 2005-06

Dehradun PAN: ABHFS0436Q 28. 3682/Del/2015 DCIT, Central M.R. Builders 2007-08 None Circle, Dehradun Village Miyanwala, Harrawala, Dehradun. PAN: AANFM8478P

Civic Centre, C-83, Ashok Vihar, New Delhi Phase-I, Delhi PAN: ABNPS4554P

New Delhi India Pvt. Ltd., Adv. 401 & 402, Aggarwal Millennium Tower, E1-3, Netaji Subhash Place, Pitampura, New Delhi PAN: AAACG2129F 45. 2771/Del/2015 ITO, Ward 19(1), Ocean King Shipping 2009-10 None C.R. Building, Services Pvt. Ltd., 341, New Delhi Joshi Road, Karol Bagh, New Delhi PAN: AAACO1889Q 46. 4529/Del/2015 DCIT, Circle 14(1), Kausar Properties P 2011-12 None New Delhi Ltd., 4T, DCM Building, 16, Barakhamba Road, New Delhi PAN: AADCK0632K 47. 4934/Del/2015 ACIT, Circle 76(1), Times Internet Ltd., 2012-13 None Aayakar Bhawan, 1, World Tower, Laxmi Nagar, New Opportunity of being Delhi. heard to the assessee Golf Course, DLF Phase-I, Gurgaon PAN: AABCT1559M 48. 4926/Del/2015 DCIT, Circle 2(1) Gurkiran Singh Dhillon 2011-12 None C.R. Building, CT1-2201, Sun Court, New Delhi Jaypee Greens, Greater Noida, Gautam Budha Nagar, UP PAN: ADGPD9970R 49. 573/Del/2015 DCIT, CC-29, Rachna Gupta, 2011-12 None New Delhi 43/1, Raipur Road, Civil Lines, Delhi PAN: AAHPG2967K

PAN: AKYPD9339D

New Delhi 72. 4933/D/2015 ACIT, Circle 76(1), PC Jeweller Ltd., 2012-13 Sh. Sanjeev Jain, Aayakar Bhawan, No.24/2708, CA Laxmi Nagar, Bank Street, New Delhi Karol Bagh, New Delhi PAN: DELP11119D 73. 3729/Del/2015 ITO Ward 19(3) Parco Paints P. Ltd. 2009-10 None I.P. Estate, 304, Shri Ram Bhawan, New Delhi Ranjit Nagar Comm. Area, New Delhi 74. 4006/D/2015 DCIT, CC-19, E-2 3 Phase Engineering 2011-12 None Jhandewalan Extn Ltd. E-200, GK-I, New New Delhi Delhi 75. 3612/D/15 JCIT, Kashipur T.G. Roller Flour Mills 2010-11 None Ltd., Melaghat Rod, Khatima PAN:AABCT9405C 76. 4930/Del/15 ACIT, Circle 77(1), Sir Ganga Ram 2012-13 None Laxmi Nagar, New Hospital, Old Rajinder Delhi Nagar, New Delhi 77. 4925/D/15 DCIT, Circle 13(2) Jindal Pipes Ltd., 2010-11 Sh. Ved Jain, Adv. New Delhi Plot NO.5, Pusa Road, New Delhi AAACJ2055K 78. 4928/D/15 ITO Ward 10(1), Ganesha Securities Pvt. 2011-12 None New Delhi Ltd., D 6/17, Vasant Vihar, New Delhi PAN: AAACG2464R 79. 3612/D/15 JCIT, Kashipur T.G. Roller Flour Mills 2010-11 None Ltd. Melaghat Road, Khatima PAN: AABCT9405C 80. 3168/D/15 DCIT, CC, Citimates Builders & 2005-06 Sh. K.K. Juneja, Aayakar Bhawan, Promoters P. Ltd. Adv. 13-A, Subhash Commissioner-389, Road, Dehradun Defence Colony, New Delhi OPAN: AABCC6369G 81. 3172/D/15 DCIT, CC, Smt. Harbans Kaur, 46, 2009-10 Sh. K.K. Juneja, Dehradun Saharanpur Road, Adv. Dehradun 82. 2596/D/15 ACIT, Circle 75(1), Moser Baer India Ltd. 2011-12 Sh. Sambhav Jain New Delhi 43B, Okhl Industrial Area,

Phase-III, New Delhi PAN: AAACM0322J 83. 2940/D/15 ITO Ward 32(3), Raj Kumari 2010-11 None Civic Centre, New B-2, Lakeview Delhi Apartment, 886, Ward No.8, Mehrauli, New Delhi PAN: BHSPK8701N 84. 1122/D/15 DCIT, Circle 13(2) Jetair Pvt. Ltd. 2009-10 None New Delhi 13, Community Centre, Yusuf Sarai, New Delhi PAN: AAACJ0121C 85. 1121/D/15 DCIT, Circle 13(2) Jay Metal Industries (P) 2011-12 Sh. Sumit New Delhi Ltd. Lalchndani,CA E-48/4, Okhla Industrial Estate, New Delhi PAN: AAACJ1748B 86. 3295/D/15 DCIT, Circle-II, M/s Lakhani Shoes & 2008-09 None NH-IV, Faridabad Apparels Pvt. Ltd., Plot No. 130, Sector 24, Faridabad 87. 3335/Del/15 ITO, Ward 4, Sandeep Kumar, VPO 2011-12 None Rohtak Bohar, Rohtak 88. 3173/D/15 DCIT, CC, 13-A, Harbans Kaur, 46, 2011-12 Sh. K.K. Juneja, Subhash Road, Saharanpur Road, Adv. Dehradun Dehradun PAN: AKMP8971A 89. 3166/D/15 DCIT, CC, Surender Pal Singh 2009-10 Sh. K.K. Juneja, Dehradun Kohli, Adv. 46, Saharanpur Road, Dehradun PAN: ACGPK1598R 90. 3163/D/15 DCIT, CC, Surender Pal Singh 2005-06 Sh. K.K. Juneja, Dehradun Kohli, Adv. 46, Saharanpur Road, Dehradun PAN: ACGPK1598R 91. 1777/D/15 ITO, Ward 22(2) Sahasra Electronics Pvt. 2006-07 None New Delhi Ltd. House No.33, Picket-1, Jasola, New Delhi PAN: AAFCS4634L 92. 1425/D/15 ITO, Ward 63(2), Kasmir Metal 2006-07 None

Civic Centre, Prop Varender Singh, New Delhi 3829/1-2, Gali Barna, Sadar Bazar, Delhi PAN: AHKPK2603A 93. 1424/D/15 ITO, Ward 19(3), Pashupati Nath Resorts 2010-11 None New Delhi (P) Ltd., Khara No.646- 653, Main Chhatterpur Mandir Road, New Delhi PAN: AAECP0732D 94. 1093/D/15 ACIT Circle 22(1), Sarla Fabrics Ltd. 2001-02 None New Delhi F-88, Okhla Industrial Area, Phase I, New Delhi PAN: AAACP5207D 95. 1801/D/15 DCIT(E), Circle Centre for the study of 2010-11 None 1(1), New Delhi Developing Societies , 29, Rajpur Road, New Delhi PAN:AAATC5038N 96. 1188/D/2015 ITO, Ward-1, Hanuman, ECbi, 0839, 2010-11 None Rewari Deptt Frame Assy, Hero Honda Motors Ltd., 69, KM Stone, Dharuhera, Rewari PAN: AAZPH1572K 97. 2999/Del/15 ITO(E) Giriraj Education & 2011-12 None Mansarovar Park, Charitable Trust, Rohtak Meham Road, Bhiwani PAN: AABTG5498D 98. 3325/D.15 ITO Ward 12(2), Ind Metchem Pvt. Ltd., 2010-11 None New Delhi 138-139, Main Road, Ghazipur, Delhi PAN:AABCI2432E

Department By : Shri A.K. Saroha, Sr. DR

Date of Hearing : 21.12.2015 Date of Pronouncement : 23.12.2015

ORDER PER BENCH These appeals by the Revenue and a few Cross objections by

some of the assessees arise out of the orders passed by the CIT(A) in

relation to the captioned assessment years.

respective ld. AR, while others remained unrepresented. During the

course of hearing, the ld. DR, although supported the respective orders of the Assessing Officers, but could not controvert the fact that tax

effect involved in each of these appeals is less than Rs.10,00,000/-.

appeals by the Revenue, one ld. AR, 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, reading 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 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.]” 4. Pursuant to the mandate of section 268A, the CBDT has issued

Circular No. 21 of 2015 dated 10.12.2015, revising the monetary limit

to Rs.10,00,000/- for not filing appeals before the Tribunal. The said circular read as under:

“Subject : Revision of monetary limits for filing of appeals by the Department before Income Tax Appellate Tribunal and High Courts and SLP before Supreme Court – measures for reducing litigation – Reg. Reference is invited to Board’s instruction No 5/2014 dated 10.07.2014 wherein monetary limits and other conditions for filing departmental appeals (in Income-tax matters) before Appellate Tribunal and High Courts and SLP before the Supreme Court were specified. 2. In supersession of the above instruction, it has been decided by the Board that departmental appeals may be filed on merits before Appellate Tribunal and High Courts and SLP before the Supreme Court keeping in view the monetary limits and conditions specified below. 3. Henceforth, appeals/ SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder: S. No Appeals in Income-tax Monetary Limit (in Rs) matter 1 Before Appellate Tribunal 10,00,000/- 2 Before High Court 20,00,000/- 3 Before Supreme Court 25,00,000/-

It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case. 4. For this purpose, “tax effect” means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues against which appeal is intended to be filed (hereinafter referred to as “disputed issues”). However the tax will not include any interest thereon, except where chargeability of interest itself is in dispute. In case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions. In case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against. 5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee. If, in the case of an assessee, the disputed issues arise in more than one assessment year, appeal, can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3. No appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. In other words, henceforth, appeals can be filed only with reference to the tax effect in the relevant assessment year. However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeal shall be filed in respect of all such assessment years even if the ‘tax effect’ is less than the 15

prescribed monetary limits in any of the year(s), if it is decided to file appeal in respect of the year(s) in which ‘tax effect’ exceeds the monetary limit prescribed. In case where a composite order/ judgement involves more than one assessee, each assessee shall be dealt with separately. 6. In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Commissioner of Income- tax shall specifically record that “even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this instruction”. Further, in such cases, there will be no presumption that the Income-tax Department has acquiesced in the decision on the disputed issues. The Income- tax Department shall not be precluded from filing an appeal against the disputed issues in the case of the same assessee for any other assessment year, or in the case of any other assessee for the same or any other assessment year, if the tax effect exceeds the specified monetary limits. 7. In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the Department has implicitly accepted the decision of the Tribunal or Court in the case of the assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues. The Departmental representatives/counsels must make every effort to bring to the notice of the Tribunal or the Court that the appeal in such cases was not filed or not admitted only for the reason of the tax effect being less than the specified monetary limit and, therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department. Accordingly, they should impress upon the Tribunal or the 16

Court that such cases do not have any precedent value. As the evidence of not filing appeal due to this instruction may have to be produced in courts, the judicial folders in the office of CIT must be maintained in a systemic manner for easy retrieval. 8. 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 are 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 the addition relates to undisclosed foreign assets/ bank accounts.

instructions are applicable to the pending appeals also and there is a

clear cut instruction to the Department to withdraw or not press such

appeals filed before the ITAT wherein tax effect is less than

Rs.10,00,000/-. These instructions are operative retrospectively to the

pending appeals also.

issued to the income-tax authorities are binding on them. Going by the

prescription of the aforenoted Circular, we are of the view that the

Revenue should have either not filed the instant appeals before the

Tribunal or withdrawn the same as the tax effect in each of such

appeals is less than the prescribed limit for not filing the appeals.

268A of Income-tax Act, 1961, and without going into merits of the

cases, we dismiss the instant appeals filed by the Revenue as tax

effect in each of these appeals is less than Rs.10.00 lac. The Cross

objections filed by the assessee, which are in support of the respective impugned orders, are also dismissed as infructuous.

Order Pronounced in the Court on 23.12.2015.

Sd/- Sd/- [L.P. SAHU] [I.C. SUDHIR] ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: 23rd December, 2015 ‘GS’ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT (A) 5. DR, ITAT

AR, ITAT, NEW DELHI.