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Income Tax Appellate Tribunal, DELHI BENCHES: “F” New Delhi
Before: SHRI G.D. AGRAWAL & SHRI SUDHANSHU SRIVASTAVA
PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER This appeal by the Department is directed against the order dated 20.3.2012 of CIT (A), Faridabad for AY 2000-01.
During the course of hearing, Ld. Counsel for the assessee at the very outset stated 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 section 268A of the Income Tax Act, 1961 (hereinafter to be referred as the Act).
3. As per the Ld. Counsel for the asseseee, the computation of the disputed tax works out to be Rs. 3,14,358/- which is less than Rs. 4 lakhs. He submitted that the department ought not to have filed the appeal and prayed that the instant case may be dismissed.
4. On the other hand, the ld. DR although supported the order of AO, but could not controvert this fact that the tax effect in this appeal is less than Rs. 4,00,000/-.
5. After considering the submissions of both the parties 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. 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.”
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.
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.
Thus, 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 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/-.
In view of the above, without going into merits of the case, we dismiss the appeal filed by the Revenue.
In the result, appeal of the Revenue is dismissed.
Order pronounced in the Open Court on 27th November, 2015. sd/- sd/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA) VICE PRESIDENT JUDICIAL MEMBER Dated: 11.2015 veena Copy of the Order forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR 6. Guard File By Order
Dy. Registrar l. Description Date No.
Date of dictation by the Author 26.11.2015
2. Draft placed before the Dictating Member 26.11.2015
Draft placed before the Second Member
Draft approved by the Second Member
Date of approved order comes to the Sr. PS
6. Date of pronouncement of order
Date of file sent to the Bench Clerk
8. Date on which file goes to the Head Clerk
Date of dispatch of order