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ITO WaRD-36(1) H-Block, Vikas Bhawan New Delhi Vs. Sky Lark Marketing G-20, I. J. Complex Laxmi Nagar, Delhi
May, 26th 2015
                                                  1                    ITA NO. 2377 & 2388/Del/13

                           DELHI BENCH: `G' NEW DELHI
                    SH. ABY T. VARKEY, ACCOUNTANT MEMBER
                        I.T.A .No.-2377 & 2388/Del/2013
                       (ASSESSMENT YEAR-2001-02)
     ITO                            vs Sky Lark Marketing
     WaRD-36(1)                        G-20, I. J. Complex
     H-Block, Vikas Bhawan             Laxmi Nagar, Delhi
     New Delhi                         (RESPONDENT)

       Appellant by              Sh.BRR Kumar, Sr. Dr.
       Respondent by             Sh.Pradeep Kumar, ADv

             Date of Hearing                21/5/2015
          Date of Pronouncement            22/05/2015



      By the present appeal filed by the Revenue the correctness of the order dated
11/1/2013 of Ld. CIT(A)XXVII, New Delhi pertaining to 2001-02 assessment year has
been assailed on the following grounds.
                           ITA No. 2377/Del/13
            "1. On the facts and in the circumstances of the case, the Ld. CIT(A) had
            erred in law and on facts in annulling the assessment order dated
            28/11/2008 for the Asstt. Year 2001-02 passed u/s 144/147 of the I.T. Act.
            No written submission was filed by the assessee at the appellate stage as is
            evident from Para 6 of the appeal order and the CIT(A) decided the appeal
            on merit."
            (ii)" On the facts and in the circumstances of the case, the Ld. CIT(A)
            ought to have considered the fact that notice u/s148 was issued on
            28/3/2008 and sent by speed post at the address on record, within 6 years
            of the relevant assessment year 2001-02 as per requirement oif Section 149
            of the I.T. Act, after obtaining approval of JCIT, Range-36, New Delhi
                                                    2                    ITA NO. 2377 & 2388/Del/13

             u/s151 of the I.T. Act. The service of notice u/s 148 is not a rrecondition
             for conferment of jurisdiction u/s 147 of the I.T. Act.".
             (iii)"On the facts and in the circumstances of the case, the Ld.
             CIT(A)without giving any finding on merit of the case on accommodation
             entries of Rs.10,32,500/- received by the assessee, annulled the assessment
             order, even when number of opportunities were given to the assessee by
             way of notices u/s142(1) at the addresses available on records."
             (iv) "On the facts and in the circumstances of the case, the order of the A.O
             may be restored and that of CIT(A) may be st aside."
             (v)     " The appellant craves leave to add, allow or amend any or all the
             grounds of appeal before or duirng the course of hearing of the appeal."
                                      ITA No. 2388/Del/13

             1. "On the facts and in the circumstances of the case, the Ld. CIT(A) has
                erred in law and on facts in cancelling the penalty order dated
                22/5/2009, imposing penalty of Rs.3,97,512/- u/s 271(1)(c ) of the I.T
                Act on the ground that assessmenjt order dated 28/11/2008 for the A.Y
                2001-02 passed u/s 144/147 of the I.T Act, has been annulled vide
                appellate order in appeal no. 80/10-11 dated 11/1/2003.
             2. On the facts and in the circumstances of the case, the Department has
                filed an appeal agains the order of CIT(A) in appeal no. 80/10-11 and
                on the facts and in the circumstnaces of the case, the order of the A.O
                may be restored and that of CIT(A) may be set aside.
             3. " The appellant craves leave to add, allow or amend any or all the
                grounds of appeal before or duirng the course of hearing of the
2.     Right at the outset Ld. AR appearing on behalf of the assessee objected to the
maintainability of the present appeal on the grounds that the tax involved is less thatn
Rs. 4 lakh as such it is contrary to Instruction No. 5/2014 dated 10/7/2014 which has
fixed the monetary limit of Rs. 4 lakh. In support of his claim reliance was placed on
various orders of the co-ordinate Bench and also judgment of the Apex Court in
Alexander George Vs. CIT (2015) 373 49(SC). The Ld. Sr. DR stated that although
the tax effect involved in the present appeal was less than Rs. 4 lakh, however, on the
date of filing the appeal the limit was R. 3 lakh. No contrary decision was cited by him
in order to canvass that a contrary view can be taken.

3.     We have heard rival submissions and perused the material available on record.
Admittedly as per recent CBDT Instruction No. 5/2014 dated 10/7/2014, the monetary
                                               3                ITA NO. 2377 & 2388/Del/13

limit for filing appeal by the department before the ITAT has been revised to Rs.4 lacs.
Considering the same, it is also seen that the co-ordinate Benches at Delhi consistently
have held that the departmental appeals, involving tax effect below Rs. 4 lacs, are not
maintainable before the ITAT. The view has been taken following the decision of the
Hon'ble Jurisdictional Delhi High Court in the case of CIT Vs. Delhi Race Club Ltd.
Reference may also be made to the order dated 3/3/2011 where by following the
earlier order dated 2/8/2010 in ITA No. 179/1991 in the case of CIT Delhi-IIIVs. M/s
P.S. Jain & Co., it has held that such instruction/circular would also be applicable to
pending cases. Reliance has also been placed on 319 ITR 347 (Delhi) and 335/ITR
591(Delhi) .In the facts of the present case admittedly the tax effect involved is below
Rs.4 lakhs which has not been disputed by the Ld. Sr. DR. Therefore, in view of the
revised instruction of the CBDT, referred to above, and following the decisions of the
Jurisdictional High Court in the case of Delhi Race Club Ltd., etc. supra, the
departmental appeal , it is seen is not maintainable.

3.     Respectfully following the decision of the Jurisdictional High Court in view of
the above factual position we hold that Instruction No.5/2014 dated 10/07/2014 will
apply to the present appeal. As a result, the department's appeal is dismissed as not

4.     In the result, appeal filed by the department is dismissed without going into the

       The order is pronounced in the open court on 22nd of May , 2015.

       Sd/-                                                  Sd/-

(S.V. MEHROTRA)                                      (ABY. T. VARKEY)
JUDICIAL MEMBER                                 ACCOUNTANT MEMBER
Dated: 22 /05/2015
                                              4              ITA NO. 2377 & 2388/Del/13

*R. Naheed*

Copy forwarded to:

1.                            Appellant
2.                            Respondent
3.                            CIT
4.                            CIT(Appeals)
5.                            DR: ITAT

                                                              ASSISTANT REGISTRAR

                                                                      ITAT NEW DELHI

Sl.No.                        Description                    Date
1.            Date of Dictation by the Author              21/05/2015
2.            Draft Placed before the Dictating Member
3.            Draft Placed before the Second Member
4.            Draft approved by the Second Member
5.            Date of approved order comes to the Sr. PS
6.            Date of pronouncement of order
7.            Date of file sent to the Bench Clerk
8.            Date on which file goes to the Head Clerk
9.            Date of dispatch of order
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