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
SHRI T.S. KAPOOR, ACCOUNTANT MEMBER
ITA No. 1642/Del/2011
Addl. Commissioner of Income Tax vs.Shri Khwaja Mohammad
Range-2, Khushal, Village,
Muzaffarnagar Bihargarh, Post Morna
Appellant by : Shri B.R.R. Kumar, Sr. DR
Respondent by : None
Date of Hearing : 16-03-2015
Date of Order : 16-03-2015
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  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
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
(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
(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
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.
(T.S. KAPOOR) (H.S. SIDHU)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Copy forwarded to: -
5. DR, ITAT
ASSISTANT REGISTRAR, ITAT,
ITA No. 1642/DEL/2011 6