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Income Tax Officer, Ward-24(1),New Delhi Vs Sh. Shamsher Singh Ahlawat, House No. 75, Sector-17, Gurgaon Haryana
January, 16th 2015
       IN THE INCOME TAX APPELLATE TRIBUNAL
             DELHI BENCH `G', NEW DELHI
      Before Smt. Diva Singh, JM And Sh. N. K. Saini, AM
             ITA No. 2442/Del/2010 : Asstt. Year : 2004-05
Income Tax Officer,            Vs Sh. Shamsher Singh Ahlawat,
Ward-24(1),                       House No. 75, Sector-17, Gurgaon
New Delhi                         Haryana
(APPELLANT)                       (RESPONDENT)
PAN No. AHDPA5643F
           Assessee by : None
           Revenue by : Sh. Ramesh Chandra, CIT DR

Date of Hearing : 15.01.2015        Date of Pronouncement : 15.01.2015

                                 ORDER
Per N. K. Saini, AM:

     This appeal by the Department is directed against the order
dated 19.01.2010 of ld. CIT(A)-III, Delhi.

2.   During the course of hearing, 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/-.

3.   After considering the submissions of the ld. D.R. 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:
                        2              ITA No. 2442/Del/2010
                                      Shamsher Singh Ahlawat




" 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
                              3              ITA No. 2442/Del/2010
                                            Shamsher Singh Ahlawat

     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.] "
4.   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.

5.   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.

6.   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
                             4               ITA No. 2442/Del/2010
                                            Shamsher Singh Ahlawat

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)
7.   Similarly the Hon ' ble Delhi High Court in the case
of CIT v. Delhi Race Club Ltd. in ITA No.128/2008, 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 v. M/s. P.S. Jain & Co. held that such circular would
also be applicable to pending cases.

8.   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.
                                          5                     ITA No. 2442/Del/2010
                                                               Shamsher Singh Ahlawat





9.      In view of the above, without going into merits of
the case, we dismiss the appeal filed by the department.

10. In the result, appeal of the department is dismissed.
        (Order Pronounced in the Court on 15.01.2015).


             Sd/-                                              Sd/-
  (Diva Singh)                                    (N. K. Saini)
JUDICIAL MEMBER                               ACCOUNTANT MEMBER
Dated: 15/01/2015
*Subodh*

Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
                                                       ASSISTANT REGISTRAR



                                                      Date     Initial
1.     Draft dictated on                          15.01.2015             PS
2.     Draft placed before author                 15.01.2015             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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