ACIT, Central Circle-16(1), New Delhi Vs. 3 Com India Pvt. Ltd. Regus Eros Corporate Towers, Level 15, Nehru Place New Delhi
June, 10th 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH `H', NEW DELHI
Before Sh. George George K, JM And Sh. N. K. Saini, AM
ITA No. 5348/Del/2010 : Asstt. Year : 2004-05
ACIT, Central Circle-16(1), Vs 3 Com India Pvt. Ltd.
New Delhi Regus Eros Corporate Towers,
Level 15, Nehru Place
PAN : AAACZ1256G
PAN No. AAAPG3416E
Assessee by : Sh. Syed Nasir Ali, CITDR
Revenue by : Sh. Vishal Kalra, Adv. & Sh. S.S. Tomar, Adv.
Date of Hearing : 2. 06.2015 Date of Pronouncement : 03.06.2015
PER N.K. SAINI, A.M.
This appeal by the Department is directed against the order
dated 29.09.2010 of the Ld. CIT(A)-XX, New Delhi.
2. The grounds raised in the appeal of the Department read as
"The ld. CIT(A) has erred on facts and in law by deleting the
disallowance of depreciation of Rs. 12,28,236/- made since
the assessee failed to prove the existence and use of certain
plant and machinery comprising demonstration equipments
2 ITA No.5348/Del/2010
(i) The assessee had failed to provide the address of the
premises where the demonstration equipments were
(ii) The assessee had failed to explain the nature of business
use to which the demonstration equipments were put
during the year.
(iii) As per the observations of the auditors in the audit
report, the management had not got the equipments
physically verified at the year end.
(iv) No physical verification could be got done by the
assessee during the assessment proceedings despite
specific requisition to this effect."
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/-.
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
3 ITA No.5348/Del/2010
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
(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 any case.
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(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.
8. Keeping in view the CBDT Instruction No.5 of 2014
dated 10.07.2014 and also the provisions of Section 268A of
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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
2. CIT v Abinash Gupta (2010) 327 ITR 619 (P&H)
3. CIT v Varindera Construction Co. (2011) 331 ITR
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
are applicable for the pending cases also and in the said
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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 03/06/2015).
(George George K) (N. K. Saini)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Copy forwarded to:
7 ITA No.5348/Del/2010
1. Draft dictated on 02/06/2015
2. Draft placed before author
3. Draft proposed & placed before the
4. Draft discussed/approved by Second
5. Approved Draft comes to the Sr.PS/PS
6. Kept for pronouncement on
7. File sent to the Bench Clerk
8. Date on which file goes to the AR
9. Date on which file goes to the Head Clerk.
10. Date of dispatch of Order.