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ITO Ward-36(1) New Delhi Vs. Puran Devi Mahajan, M-138, Laxmi Nagar, New Delhi
May, 15th 2015
                         DELHI BENCH "F": NEW DELHI
                     SHRI A. T. VARKEY, JUDICIAL MEMBER

                                   ITA No. 6316/Del/2013
                                 (Assessment Year: 2008-09)

                   ITO                       Puran Devi Mahajan,
                   Ward-36(1)                M-138, Laxmi Nagar,
                   New Delhi          Vs.    New Delhi
                   (Appellant)               (Respondent)

                       Appellant by    :    Sh. Vikram Sahay, Sr. DR
                    Respondent by      :    Sh. Vikram Kakar, Adv

                         Date of Hearing          08.05.2015
                   Date of pronouncement          13.05.2015


      This is an appeal by the revenue against the order of the CIT(A), XXVII, New Delhi
dated 30.09.2013 relevant to the assessment year 2008-09.

2.    The grounds raised in the appeal of the Department read as under:-

      "1.    On the facts and in the circumstances of the case, the ld CIT(A) has
             erred in deciding the case on technical grounds without delving
             into the merits of the case.
3.    During the course of hearing, Ld. Counsel for the assessee at the very outset
stated 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 section 268A of the Income Tax Act 1961
(hereinafter to be referred as the Act).
4.    As per the Ld. Counsel the ld CIT(A) has allowed and appeal preferred by
the assessee before him and the enhancement of income from Rs.1,46,050/- to
Rs.11,58,860/- was deleted and observed as under:-
      "The AO had carried out the rectification without verifying whether there was
      any mistake at all in the earlier 143(3) order dated 3.05.2010 or in the return of
      income filed by the appellant. Therefore, the order U/S 154 of the IT Act
      dated 28.12.2012 was passed without considering whether there was any
                                         Page No. 2

      mistake apparent from the record necessitating rectification. The AO had
      taken appellant's income from life insurance business at Rs.12,18,768/-
      wrongly without considering the expenditure of Rs.10,12,808/- claimed by the
      appellant. As there is no mistake apparent from the record necessitating
      rectification u/s 154, the rectification order dated 28.12.2012 is not
      sustainable. Therefore, grounds of appeal raised by the appellant is allowed
      and the enhancement of income from Rs.1,46,050/- to Rs. 11,58,860/- is
      deleted. Thus, the appellant's income for the A.Y. 2008-09 remains at

5.    As per the ld counsel for the assessee the net tax effect of the impugned
addition which stands deleted i.e. Rs.11,58,680/- will be less than Rs. 4 lakhs only and
so the department ought not to have filed the appeal and prayed that the instant
case may be dismissed.
6.    On the other hand, the ld. DR although 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/-.
7.    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
                                       Page No. 3

      (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."

8.    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.
9.     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.
10.   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).

11.   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.
12.   Thus, 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. 5 of 2014 dated 10th July,
2014 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
                                     Page No. 4

13.  In view of the above, without going into merit of the case, we dismiss the
appeal filed by the Revenue.
14.  In the result, appeal of the Revenue is dismissed.

       Order pronounced in the open court on 13.05.2015.

            -Sd/-                                                    -Sd/-
       (J.S.REDDY)                                            (A. T. VARKEY)
    ACCOUNTANT MEMBER                                       JUDICIAL MEMBER

A K Keot

Copy forwarded to

   1. Applicant
   2. Respondent
   3. CIT
   4. CIT (A)
   5. DR:ITAT

                                                           ASSISTANT REGISTRAR
                                                               ITAT, New Delhi
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