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Income Tax Officer, Ward 37(1), Room No. 409,Vikas Bhavan, IP Estate, New Delhi 92 Vs. Shri Prem Chand Jain, A-21, Second Floor, Green Park Main, New Delhi 110 016
June, 01st 2015
                    DELHI BENCH `F', NEW DELHI


                         ITA No. 5396/Del/2011
                       Assessment Year: 2008-09

     Income Tax Officer,                 vs.   Shri Prem Chand Jain,
     Ward 37(1), Room No. 409,                 A-21, Second Floor,
     Vikas Bhavan,                             Green Park Main,
     IP Estate, New Delhi ­ 92                 New Delhi ­ 110 016
                                               (PAN: AAGPJ1232M)
     (Appellant)                               (Respondent)

                Appellant by : Sh. Vivek Vadekar, CIT(DR)
                Respondent by : Sh. P.K. Mishra, CA

                     Date of Hearing : 29-05-2015
                     Date of Order    : 29-05-2015



     This appeal by the Department is directed against the Order dated
20.9.2011 of Ld. CIT(A)-XXVIII, New Delhi pertaining to assessment year
2.   The grounds raised in the appeal of the Department read as under:

        1.    "Whether the CIT(A) was justified in rejecting the AO's
              contention of treating the trading in shares as business
              income instead of capital gains despite the nature of
              transactions made by the assessee in terms of source of
              money for trading, and the frequency and the volume of
        2.    The appellant craves to add, amend or modify the grounds
              of appeal at any time."
       ITA No.5396/DEL/2011 (ITO VS. SH. PREM CHAND JAIN)                   2

3.     At the time of hearing,            Shri P.K. Mishra,          CA/Authorised
Representative of the Assessee 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 the section 268A of the Income Tax Act, 1961 (hereinafter to
be referred as the Act).
4.     On the other hand, Ld. DR 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/-.
5.     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 (1) and the circumstances under which such
     appeal or application for reference was filed or not filed in respect of
     any case.
        ITA No.5396/DEL/2011 (ITO VS. SH. PREM CHAND JAIN)               3

      (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

6.      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.
7.      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.
8.      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).

9.      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.

10.     Thus, from the ratio laid down by the Hon'bl 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
      ITA No.5396/DEL/2011 (ITO VS. SH. PREM CHAND JAIN)                 4

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 Rs. 4,00,000/-.
11.   In view of the above, without going into merit of the case, we dismiss
the appeal filed by the Revenue.
12.   In the result, appeal of the Revenue is dismissed.
      Order pronounced in the Open Court on 29/5/2015.

                   Sd/-                                   Sd/-
             (N.K. SAINI)                            (H.S. SIDHU)
      ACCOUNTANT MEMBER                           JUDICIAL MEMBER

Dated: 29/5/2015


Copy forwarded to: -
1.   Appellant
2.   Respondent
3.   CIT
4.   CIT(A)
5.   DR, ITAT
                          TRUE COPY
                                                  By Order,

                                                    ASSISTANT REGISTRAR
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