ITO, REWARI vs. DR. MAHENDER NAGPAL PROP. M/S. MAHENDER SURGICAL HOSPITAL & NURSHING HOME, HARYANA

PDF · subscribers
ITA 336/DEL/2013Status: DisposedITAT Delhi17 November 2015AY 2009-104 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 ought not to have filed the appeal as the tax effect was less than the prescribed monetary limit for filing appeals before the ITAT, as per CBDT Instruction No. 5/2014 and Section 268A of the Income Tax Act.

What were the facts?

The Department appealed against an order of the CIT(A) that deleted additions made by the AO on account of differences in professional income and vehicle expenses. The assessee argued that the tax effect was below the monetary limit for filing appeals as per CBDT circulars.

What were the issues?

Whether the Department's appeal should be dismissed on the grounds of low tax effect, considering CBDT circulars and Section 268A of the Income Tax Act.

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

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

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

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

Hearing: 2015

Date of Hearing : Date of Hearing : 17-11111111-2015 Date of Hearing : Date of Hearing : 2015 2015 2015 Date of Order : Date of Order : 17 Date of Order : Date of Order : 17 17-11111111-2015 17 2015 2015 2015 ORDER PER H.S. SIDHU, J.M. This appeal by the Department is directed against the Order dated 15.11.2012 of Ld. CIT(A), Rohtak pertaining to assessment year 2009-2010. 2. The grounds raised in the appeal of the Department read as under: “1. On the facts and circumstances of the case, the Ld. CIT (A) has erred in law and in facts in deleting the addition amounting to Rs. 9,24,724/- made by AO on account of the differences in the professional income / receipts, as the assessee failed to furnish sustainable document, evidence/ reconcilation statements in the course of assessment proceedings.

2. On the facts and circumstances of the case, the Ld. CIT(A) has erred in law and in facts in deleting the addition amouting to Rs.

21,473/- made on account of vehicle expenses as the assessee failed to produce documetanry evidence / log book of expenses incurred by him in the RE A/c without appreciating the facts and reasoning discussed in detail by the AO in assessment order.

3.

At the time of hearing, Shri Gautam Jain, Advocate 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).

4.

On the other hand, Ld. DR supported the order of the AO. 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.”

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. Keeping in view the CBDT Instruction No. 5 of 2014 dated 10th July, 8. 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 17/11/2015.

More judgments on Section 268A

All 3,931 judgments and leading authorities on Section 268A →

Recent GST High Court judgments

Search GST case law →