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Income Tax Officer, Ward 36(2), Room No. 105, H Block, Vikas Bhawan New Delhi Vs. Shakir Hussain H. No. 8, Khureji Khas, 28, Parwana Road, Delhi
June, 24th 2015
                DELHI BENCH `G', NEW DELHI
     Before Sh. N. K. Saini, AM And Sh. George George K , JM
             ITA No. 5571/Del/2012 : Asstt. Year : 2008-09

Income Tax Officer,            Vs    Shakir Hussain
Ward 36(2), Room No. 105,            H. No. 8, Khureji Khas,
H Block, Vikas Bhawan                28, Parwana Road,
New Delhi                            Delhi
(APPELLANT)                          (RESPONDENT)
                                    PAN No. AATPH8696L
            Assessee by : None
            Revenue by : Sh. Vijay Chhodha Adv. C.I.T.

Date of Hearing : 23.06.2015         Date of Pronouncement : 23.06.2015



      This appeal by the Department is directed against the order
dated 8.8.2012 of ld. CIT(A)- XXVII, New Delhi.
2.    The grounds raised in the appeal of the Department read as
      "1. On the facts and in the circumstances of the case, the
      ld. CIT(A) had erred in deleting the addition of Rs.
      9,43,291/- (Rs. 11,45,000-Rs. 2,01,709) made by the A.O.
      as unexplained cash deposits without valid explanation of
      the assessee.
      2. On the facts and in the circumstances of the case, the
      Ld. CIT(A) had erred in deleting the addition of Rs.
                                  2                   ITA No.5571/Del/2012

      3,60,710/- (Rs. 6,00,000-Rs. 2,39,290/-) under the head
      "Income from Business."
      3. On the facts and in the circumstances of the case, the
      appellant craves leave to add, allow or amend any or all
      the grounds of appeal before or during the course of
      hearing of the appeal."

3.     During the course of hearing nobody was present on behalf of
 the assessee neither any adjournment was filed. We therefore,
 proceeded ex parte qua the assessee and the appeal of the department
 is disposed of on merit. After hearing the ld. DR could not
 controvert this fact that tax effect in this appeal is less than
 4.    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
                               3                 ITA No.5571/Del/2012

     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
     (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.]"

5.    It is not in dispute that the Board's instruction or
directions issued to the income-tax authorities are binding
                               4                 ITA No.5571/Del/2012

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.

6.    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.

7.    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)

8.    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
                               5                  ITA No.5571/Del/2012

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.

9.      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
instructions, monetary tax limit for not filing the appeal
before the ITAT is Rs. 4.00 lakhs.
10. In view of the above, without going into merits of the
case, we dismiss the appeal filed by the Revenue.
11. In the result, appeal of the Revenue stand dismissed.
      (Order Pronounced in the Court on 23/06/2015).

             Sd/-                              Sd/-
 (George George K)                       (N. K. Saini)
Dated:       23 /06/2015
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
                                          ASSISTANT REGISTRAR
                                          6                             ITA No.5571/Del/2012

                                                     Date     Initial
1.    Draft dictated on                          25.05.2015                 PS
2.    Draft placed before author                 25.05.2015                 PS
3.    Draft proposed & placed before the                                    JM/AM
      second member
4.    Draft discussed/approved by Second                                    JM/AM
5.    Approved Draft comes to the Sr.PS/PS                                  PS/PS
6.    Kept for pronouncement on                                             PS
7.    File sent to the Bench Clerk                                          PS
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.
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