ITO, NEW DELHI vs. MRS. NEELAM JAIN, NOIDA

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ITA 1005/DEL/2012Status: DisposedITAT Delhi02 December 2015AY 2001-024 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that the Department should not have filed the appeal as the tax effect was less than the prescribed monetary limit under Section 268A of the Income Tax Act and CBDT Instruction No. 5/2014. The circulars are applicable to pending cases.

What were the facts?

The Department filed an appeal against an order of the CIT(A) for AY 2001-02. The assessee argued that the tax effect was below the monetary limit prescribed by CBDT circulars for filing appeals.

What were the issues?

Whether the appeal filed by the Revenue is maintainable in light of the monetary limits prescribed by CBDT circulars for filing appeals before the ITAT.

Which sections of the Income-tax Act were involved?

Section 268A

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(2)Show list

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Income Tax Appellate Tribunal, DELHI BENCH ‘E’, NEW DELHI

Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI

This appeal by the Department is directed against the Order dated 15.12.2011 of Ld. CIT(A)-XIX, New Delhi pertaining to assessment year 2001-02. 2. The grounds raised in the appeal of the Department read as under:

“On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in 1) Admitting the additional evidence u/s. 46A. 2) Deleting the additions of Rs. 75,600/- made by husband of the assessee through bank cheque from his saving bank in absence of supporting documents. 3) Deleting the addition of Rs. 6,17,039/- out of Rs. 6,67,039/- made on account of cash credits in her bank a/c with IOB, Sheikh Sarai, New Delhi in absence of supporting evidence. 4) Deleting the addition of Rs. 60,000/- out of Rs. 74,500/- made on account of credit entries in the SB A/c with Syndicate Bank u/s. 68 in the absence of supporting evidence. 5) Deleting the addition of Rs. 1,107,500/- made on account of cash deposit. The appellant craves the right to alter, amend, add or substitute the grounds of appeal.”

3.

At the time of hearing, Sh. Kapil Goel, Ld. Counsel for the assessee has submitted 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.

4.

Ld. DR supported the order of the AO. 5. After hearing both the parties and perusing 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 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 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.

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 02/12/2015.

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