IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH `F', NEW DELHI
Before Sh. N. K. Saini, AM And Sh. H. S. Sidhu, JM
ITA No. 315/Del/2011 : Asstt. Year : 2007-08
ACIT, Circle- 15(1), Vs M/s Rajesh & Ashok Securities Pvt.
C.R Building, I. P. Estate, Ltd., 38-B, 3rd Floor, Yusuf Sarai,
New Delhi New Delhi-110016
(APPELLANT) (RESPONDENT)
PAN No. AAACR1349A
Assessee by : Sh. Akshay Singh, Adv.
Revenue by : Sh. Vikram Sahay, Sr. DR
Date of Hearing : 30.12.2014 Date of Pronouncement : 30.12.2014
ORDER
Per N. K. Saini, AM:
This appeal by the Department is directed against the order dated
12.10.2010 of ld. CIT(A)-XVIII, New Delhi.
2. The grounds raised in the appeal of the Department read as under:-
"1. That on the facts and circumstances of the case and in law,
the Ld. CIT(A) erred in holding that the surplus on sale of
investment portfolio is to be taxed under the head capital gain.
2. That on the facts and circumstances of the case and in law,
the CIT(A) has deleted/restricted the addition made u/s 14A
read with Rule 8D.
3. That on the facts and circumstances of the case and in law,
the Ld. CIT(A) has erred in restricting the claim of set off of
interest paid on loan from 80% to 50%.
2 ITA No. 315/Del/2011
Rajesh & Ashok Securities Pvt. Ltd.
4. The appellant craves to be allowed to add any fresh
grounds of appeal and/or delete or amend any of the grounds
of appeal."
3. During the course of hearing, the Learned counsel for the
assessee at the very outset stated that the tax effect in this
appeal is less than Rs.3,00,000/-, 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).
4. On the other hand, the ld. D.R., although supported the
order of the Assessing Officer, but could not controvert this
fact that tax effect in this appeal is less than Rs.3,00,000/-.
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 01/04/99. The 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.
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Rajesh & Ashok Securities Pvt. Ltd.
(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.] "
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Rajesh & Ashok Securities Pvt. Ltd.
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.3 of
2011 dated 09.02.2011, by which the CBDT has revised the
monetary limit to Rs. 3,00,000/- for filing the appeal before
the Tribunal.
8. Keeping in view the CBDT Instruction No.3 of 2011 dated
09.02.2011 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 Hon'ble Punjab & Haryana High Court:-
1. CIT v Oscar Laboratories P. Ltd (2010) 324
ITR 115 (P&H)
2. CIT v Abinash Gupta (2010) 327 ITR 619
(P&H)
3. CIT v Varindera Construction Co. (2011) 331
ITR 449 (P&H)(FB)
9. Similarly, the Hon ' ble Delhi High Court in the case of
CIT v. Delhi Race Club Ltd. in ITA No.128/2008, order dated
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Rajesh & Ashok Securities Pvt. Ltd.
03.03.2011 by following the earlier order dated 02.08.2010 in
ITA No.179/1991 in the case of CIT Delhi-III v. M/s. P.S. Jain
& Co. held that such circular would also be applicable to
pending cases.
10. 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.3/11
dated 09.02.2011 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. 3.00
lakhs.
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 30/12/2014).
Sd/- Sd/-
(H. S. Sidhu) (N. K. Saini)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 30/12/2014
*Subodh*
6 ITA No. 315/Del/2011
Rajesh & Ashok Securities Pvt. Ltd.
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
ASSISTANT REGISTRAR
Date Initial
1. Draft dictated on 30.12.2014 PS
2. Draft placed before author 30.12.2014 PS
3. Draft proposed & placed before the JM/AM
second member
4. Draft discussed/approved by Second JM/AM
Member.
5. Approved Draft comes to the Sr.PS/PS PS/PS
6. Kept for pronouncement on PS
7. File sent to the Bench Clerk PS
8. Date on which file goes to the AR
9. Date on which file goes to the Head Clerk.
10. Date of dispatch of Order.
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