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Mr. Akshay Bhardwaj, E-26, 3rd Floor, Greater Kailash-I, New Delhi-110048
May, 06th 2015
          IN THE INCOME TAX APPELLATE TRIBUNAL
                DELHI BENCH `A', NEW DELHI
     Before Sh. N. K. Saini, AM And Sh. A. T. Varkey, JM
             ITA No. 3027/Del/2013 : Asstt. Year : 2004-05

Income Tax Officer,            Vs   Mr. Akshay Bhardwaj,
Ward-37(2),                         E-26, 3rd Floor, Greater Kailash-I,
New Delhi                           New Delhi-110048
(APPELLANT)                         (RESPONDENT)
PAN No.AAHPB2681B
           Assessee by : Sh. Kapil Goel, Adv.
           Revenue by : Sh. T. Vasantan, Sr. DR

Date of Hearing : 23.04.2015        Date of Pronouncement : 23.04.2015

                                ORDER

PER N.K. SAINI, A.M.

      This appeal by the Department is directed against the order
dated 18.02.2013 of the Ld. CIT(A)-XXVIII, New Delhi.

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

     "1. In the facts of the case, the Ld. CIT(A) erred in deleting
     the additions made by the AO on account of disallowance of
     exemption claimed by assessee u/s 10-B not appreciating the
     fact that for claiming exemption u/s 10A, the assessee has not
     fulfilled the mandatory requirement of filing the report of an
     accountant in prescribed Form No. 56-F of I. T. Rules, 1962
     along with the return of income.
                                   2                    ITA No.3027/Del/2013
                                                          Akshay Bhardwaj

     2. In the facts and circumstances of the case, the Ld. CIT(A)
     has erred in deleting the addition made by the AO on account
     of disallowance of exemption claimed by assessee u/s 10B not
     appreciating the fact that on mere filing of Form No. 56-F
     during the course of assessment proceedings, the assessee
     was not eligible to exemption u/s 10-A relying on judgment of
     Apex Court in the case of Goetz India Limited where it was
     held that as the assessee has failed to follow the statutory
     mechanism of filing the revised return for claiming deduction,
     the same cannot be allowed through revised computation
     during the course of assessment proceedings.




     3. The appellant crave leave to add, amend or modify any/all
     the ground of appeal before or during the course of appeal.

      It is prayed that the order of CIT(A) is contrary to the facts
     on record and settled position of law; and the order of the
     Assessing Officer deserves to be restored."

3.    During the course of hearing, the Learned 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.    On the other hand, the ld. D.R., although supported the
order of the Assessing Officer, but could not controvert this
fact that tax effect in this appeal is less than Rs.4,00,000/-.
                               3                 ITA No.3027/Del/2013
                                                   Akshay Bhardwaj

5.    After considering the submissions of the ld. D.R. and
the material on record, it is noticed that Section 268A has
been inserted by the Finance Act, 2008 with retrospective
effect from 01/04/99. The 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
                               4                 ITA No.3027/Del/2013
                                                   Akshay Bhardwaj

     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.] "

6.    It is not in dispute that the Board ' s instruction or
directions issued to the income-tax authorities are binding
on those authorities, therefore, the department ought not to
have filed the appeal in view of the above said provisions
mentioned in section 268A of the Act 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
of 2014 dated 10.07.2014, by which the CBDT has revised
the monetary limit to Rs. 4,00,000/- for filing the appeal
before the Tribunal.
                               5                  ITA No.3027/Del/2013
                                                    Akshay Bhardwaj

8.    Keeping in view the CBDT Instruction No.5 of 2014
dated 10.07.2014 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 Hon'ble Punjab & Haryana High Court:-


     1. CIT v Oscar Laboratories P. Ltd (2010) 324 ITR
     115 (P&H)
     2. CIT v Abinash Gupta (2010) 327 ITR 619 (P&H)
     3. CIT v Varindera Construction Co. (2011) 331 ITR
     449 (P&H)(FB)

9.    Similarly the Hon ' ble Delhi High Court in the case of
CIT v. 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
v. M/s. P.S. Jain & Co. held that such circular would also be
applicable to pending cases.




10. 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 cases, we are of the considered view that
Instruction No.5/14 dated 10.07.2014 issued by the CBDT
                             6                 ITA No.3027/Del/2013
                                                 Akshay Bhardwaj

are 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 lakhs.

11. In view of the above, without going into merits of the
case, we dismiss the appeal filed by the Revenue.

12. In the result, appeal of the Revenue stand dismissed.
(Order Pronounced in the Court on 23/04/2015).

             Sd/-                              Sd/-
  (A. T. Varkey)                          (N. K. Saini)
JUDICIAL MEMBER                      ACCOUNTANT MEMBER
Dated: 23/04/2015
*Subodh*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
                                       ASSISTANT REGISTRAR

 
 
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