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ACIT, Circle 7(1), New Delhi Room No. 312, 3rd floor,CR Building, New Delhi vs. M/s Samit Enterprises (P) Ltd., 2nd floor, Block-B, Vatika Atrium, Sector Road, DLF Phase-V, Gurgaon, Haryana-122002
February, 12th 2015
               IN THE INCOME TAX APPELLATE TRIBUNAL
                     DELHI BENCH `G', NEW DELHI

            BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
                                And
             SHRI J.S. REDDY, ACCOUNTANT MEMBER

                            ITA No. 4563/Del/2013
                          Assessment Year: 2008-09

        ACIT, Circle 7(1),             vs.   M/s Samit Enterprises (P) Ltd.,
        New Delhi                            2nd floor, Block-B, Vatika Atrium,
        Room No. 312, 3rd floor,             Sector Road, DLF Phase-V,
        CR Building, New Delhi               Gurgaon, Haryana-122002
                                             (PAN: AAACS0463Q)

        (Appellant)                          (Respondent)

                   Appellant by : Sh. BRR Kumar, Sr. DR
                   Respondent by : Sh. K. Sampath, Adv. &
                                   Sh. V. Raj Kumar, Adv.

                        Date of Hearing : 11-02-2015
                        Date of Order    : 11-02-2015


                                     ORDER

PER H.S. SIDHU, J.M.


        This appeal by the Department is directed against the Order dated
27/5/2013 of Ld. CIT(A)-X, New Delhi.
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) erred in
        deleting the addition of Rs. 9347/- made by the AO u/s. 14A of the
        I.T. Act, 1961.
     2. On the facts and circumstances of the case the Ld. CIT(A) erred in
        deleting the addition of Rs. 10,01,475/- made by the AO by treating
        income under the Head STCG as business income."
     3. The Appellant craves to amend, modify, alter, add or forego any
        ground(s) of appeal at any time before or during the hearing of this
        appeal.""
       ITA No. 4563/DEL/2013 (ACIT VS. M/S SAMIT ENTERPRISES (P) LTD.) 2






3.     At the threshold we find 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.     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/-.
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
        ITA No. 4563/DEL/2013 (ACIT VS. M/S SAMIT ENTERPRISES (P) LTD.) 3


      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.
8.      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, 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 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 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
      ITA No. 4563/DEL/2013 (ACIT VS. M/S SAMIT ENTERPRISES (P) LTD.) 4


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 11/2/2015.


                   Sd/-                                       Sd/-

      (J.S. REDDY)                                   (H.S. SIDHU)
 ACCOUNTANT MEMBER                                JUDICIAL MEMBER

Dated: 11/2/2015

*SR BHATNAGAR*

Copy forwarded to: -
1.   Appellant
2.   Respondent
3.   CIT
4.   CIT(A)
5.   DR, ITAT
                          TRUE COPY
                                                                         By Order,



                                                    ASSISTANT REGISTRAR

 
 
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