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Addl. Commissioner of Income Tax Range-2, Muzaffarnagar Vs.Shri Khwaja Mohammad Khushal, Village, Bihargarh, Post Morna Distt. Muzaffarnagar
March, 17th 2015
                 IN THE INCOME TAX APPELLATE TRIBUNAL
                       DELHI BENCH `D', NEW DELHI

         BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
                              And
          SHRI T.S. KAPOOR, ACCOUNTANT MEMBER

                             ITA No. 1642/Del/2011
                                  A.Y. 2003-04

     Addl. Commissioner of Income Tax vs.Shri Khwaja Mohammad
     Range-2,                            Khushal, Village,
     Muzaffarnagar                       Bihargarh, Post Morna
                                         Distt. Muzaffarnagar
                                         PAN: ALJPK0883H
     (Appellant)                         (Respondent)

                 Appellant by   : Shri B.R.R. Kumar, Sr. DR
                 Respondent by : None

                       Date of Hearing : 16-03-2015
                       Date of Order    : 16-03-2015

                                    ORDER

PER H.S. SIDHU, J.M.

     The Revenue has filed this            Appeal against the Order dated
20/1/2011    passed     by    the   Ld.   CIT(A),   Muzzaffarnagar   for   the
assessment year 2003-04.
2.   The grounds raised by the Department read as under:
            1.     "On the facts and in the circumstances of the
                  case the ld. CIT(A) has erred in law in deleting
                  the addition of Rs. 9,64,000/- made by the AO
                  under section 68 of the I.T. Act, 1961 as
                  unexplained gifts credited in the books of
                  account ignoring the decision of Hon'ble Apex
                  Court in the case of Sumati Dayal vs. CIT (214
                  ITR 801) and that the Hon'ble High Court of
                  Chattisgarh in the case of Kushal Prasad Manhar
                  vs. CIT [2010] 236 CIT 192), without
                  appreciating the full facts of the case.

            2. On the facts and in the circumstances of the case
            the Ld. CIT(A) erred in law in deleting the addition of
                     ITA No. 1642/DEL/2011                  2


     Rs. 9,64,000/- made by the AO without appreciating
     the full facts of the case and by ignoring the judicial
     pronouncement reported in the following cases:-

     i)     Shree Lekha Banarjee vs. CIT 49 ITR 112 (SC)
     ii)    Ram Lal Agarwal vs. CIT 280 ITR 547 (Alld.)
     iii)   ITO vs. Rai chand Kothari (HUF) 39 TTJ (Tribunal)
     iv)    Shamker Inds. Vs. CIT, 14 ITR 689 (Cal.)
     v)     Prakash Textiles Agency vs. CIT, 121 ITR 89
     vi)    C. Kant & Co. vs. CIT, 126 ITR 63 (Cal.)

     3.   On the facts and in the circumstances of the
     case, the CIT(A) has erred in law by treating the
     income of Rs. 20,000/- as agricultural income, which
     was taken by the AO as income from other sources as
     the assessee failed to prove that any agricultural
     operation is being carried out.

     4.   The order of Ld. CIT(A) be set aside and that of
     the Assessing Officer be restored."




3.   This case was earlier fixed for 22.10.2014, but none
appeared at the time of hearing and the same was
adjourned for 28.1.2015.       Again on 28.1.2015 hearing
adjourned for 16.3.2015 on the request of the assessee's
counsel. For today i.e. 16.3.23015 notice was sent to the
assessee on the address given by it, however, again none
appeared on behalf of the assessee nor any request for
adjournment is filed. In view of the above, we are of the
considered opinion that no useful purpose would be served
to adjourn the case again and again. Therefore, we are
deciding the Appeal, exparte qua assessee.
4.    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).
                      ITA No. 1642/DEL/2011                 3


5.   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 considering the submissions of the Ld. DR 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."
                       ITA No. 1642/DEL/2011                   4



  7.    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.
  8.    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.
  9.    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).

  10.   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.
  11.   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
                          ITA No. 1642/DEL/2011                    5





     pending cases also and in the said instructions, monetary tax

     limit for not filing the appeal before the ITAT is Rs. 4,00,000/-.

     12.   In view of the above, without going into merit of the case,

     we dismiss the appeal filed by the Revenue.

     13.   In the result, appeal of the Revenue is dismissed.
           Order pronounced in the open court on 16/3/2015.

                Sd/-                                            Sd/-

         (T.S. KAPOOR)                                  (H.S. SIDHU)
       ACCOUNTANT MEMBER                             JUDICIAL MEMBER

Dated: 16/3/2015

*SR BHATNAGAR*

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



                                             ASSISTANT REGISTRAR, ITAT,
                                                            NEW DELHI
ITA No. 1642/DEL/2011   6

 
 
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