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Income Tax Appellate Tribunal, DELHI BENCH “E”, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI
Date of Hearing : Date of Hearing : 24-11-201 Date of Hearing : Date of Hearing : 201 2015 201 Date of Order : Date of Order : 24-11-201 Date of Order : Date of Order : 201 2015 201
ORDER ORDER ORDER ORDER
This appeal filed by the Revenue and Cross Objection filed by the Assessee emanate out of the common Order dated 24.9.2009 passed by the Ld. CIT(A)-IX, New Delhi pertaining to assessment year 2001-02. For the sake of convenience, we are proceeding to dispose off the appeal and cross objections by this consolidated order.
The grounds raised in the Revenue’s appeal read as under:-
The order of the Ld. CIT(A) is erroneous and contrary to facts and law.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has deleted the addition of Rs. 10,00,000/- made by AO u/.s. 68 being the unexplailned cash credits.
2.1 The Ld. CIT(A) ignored the fact that the assesseee did not discharge the onus of proving the credit worthiness of the creditors and genuineness of the transactions.
3. The appellant craves leave to add, to alter, or amend any grounds of the appeal raised abvoe at the time of the hearing.
The grounds raised in the Assessee’s Cross Objection read as under:-
1. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned assessment order passed by the AO that too without 2
assuming jurisdiction as per law in as much as mandatory notice u/s. 148 was not served upon the assessee and Ld. CIT(A) ought to have quashed the impugend assessment order on this ground.
2. That having regard to the facts and circumstances of the case Ld. CIT(A) has erred in law and on facts in confirming the action of AO in assuming jurisdiction u/s. 147 and that too without complying with the mandatory conditions as prescribed under section 147 to 151 of the Income Tax Act, 1961.
3. That in any case an in any view of the matter action of Ld. CIT(A) in confirming the action of the AO in reopening the case is bad in law and agaisnt the facts and circumstnaces of the case.
4. That the cross objector craves the lave to without prejudice, under the facts and circumstances, the proceedings u/s. 147/148 are illegal, unwarranted and without jurisdiction, thus, non maintainable.
At the threshold, Ld. Counsel of the assessee 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 the section 268A of the Income Tax Act, 1961 (hereinafter to be referred as the Act).
Ld. DR supported the order of the AO.
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. 4
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, I am of the view that the Revenue should not have filed the instant appeal before the Tribunal. While taking such a view, I fortify 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).
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’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, I am 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/-. 12. In view of the above, without going into merit of the case, I dismiss the appeal filed by the Revenue. 14. In the result, appeal of the Revenue is dismissed.
CO NO. 45/DEL/2010 ASSESSEE’S CROSS OBJECTION
Since we have alrady dismissed the Revenue’s Appeal as aforesaid, the Assessee’s Cross Objection has become infructuous hence, the same is dismissed as infructuous.
In the result, the Appeal filed by the Revenue stands dismissed and Cross Objection filed by the Assessee is also dismissed, as infurctuous.
Order pronounced in the Open Court 24-11-2015.