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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC-2’, NEW DELHI
Before: SHRI H.S. SIDHU
Date of Hearing Date of Hearing : : 27 27-10 10-2015 2015 Date of Hearing Date of Hearing : : 27 27 10 10 2015 2015 Date of Order Date of Order : 27 27-10 10-2015 2015 Date of Order Date of Order 27 27 10 10 2015 2015
ORDER This appeal by the Department is directed against the Order dated 16/01/2014 of Ld. CIT(A)-I, New Delhi. 2. The grounds raised in the appeal of the Department read as under:
1. That the CIT(A) has erred in law and on facts of the case in deleting the disallowance made u/s. 80IB of the I.T. Act, 1961 amounting to Rs. 49,246/-. 2(a) The order of the CIT(A) is erroneous and not tenable in law and on facts. (b) The appellant craves leaves to add, alter oa amend any / all of the grounds of appeal before or durign the course of the hearing of the appeal.
In this case, Notice of hearing to the assessee was sent by the Registered AD post, in spite of the same, assessee, nor its authorized representative appeared to prosecute the matter in dispute, nor filed any application for adjournment. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeal, I am of the view that no useful purpose would be served to issue notice again and again to the assessee, therefore, I am deciding the present appeal exparte qua assessee, after hearing the Ld. DR and perusing the records.
At the threshold, I note that 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 AO, but could not controvert this fact that the tax effect in this appeal is less than Rs. 4,00,000/-. 6. After hearing the Ld. DR, 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.
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, 9. 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/-.