ITA NO.4327/Del/2009 &
CO NO. 3/DEL/2010
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "D", NEW DELHI
BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER
AND
SHRI H.S. SIDHU, JUDICIAL MEMBER
I.T.A. No. 4327/Del/2009
A.Y. : 2005-06
ITO, WARD 4(2), VS. M/S JAGDAMBA PETROLEUM
ROOM NO. 413-A, INDIA PVT. LTD.,
CR BUILDING, E-125, GAUTAM NAGAR,
IP ESTATE, NEW DELHI NEW DELHI
(PAN: AAACJ9089P)
(APPELLANT) (RESPONDENT)
AND
C.O. NO. 3/Del/2010
(In ITA No. 4327/Del/2009)
A.Y. : 2005-06
M/S JAGDAMBA PETROLEUM VS. ITO, WARD 4(2),
INDIA PVT. LTD., ROOM NO. 413-A,
C/O : RAJ KUMAR & CR BUILDING,
ASSOCIATES IP ESTATE, NEW DELHI
CHARTERED ACCOUNTANTS
4435/7, ANSARI ROAD,
DARYAGANJ,
NEW DELHI - 110002
(APPELLANT) (RESPONDENT)
Department by : Sh. Gaurav Dedeja, Sr. DR
Assessee by : Sh. R. Kumar Gupta, CA & Sh.
Saurav Rohatgi
Date of Hearing : 29-6-2015
Date of Order : 29-6-2015
ORDER
PER H.S. SIDHU: JM
This appeal filed by the Revenue and Cross Objections filed by
the Assessee emanate out of the common Order dated 04.9.2009
passed by the Ld. CIT(A)-VII, New Delhi pertaining to assessment year
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ITA NO.4327/Del/2009 &
CO NO. 3/DEL/2010
2005-06. For the sake of convenience, we are proceeding to dispose
off the appeal and cross objections by this consolidated order.
2. The grounds raised in the Revenue's appeal being ITA NO.
4327/Del/2009 read as under:-
"1. The order of the Ld. CIT(A) is erroneous and contrary
to facts and law.
2. On the facts and in the circumstance of the case and
in law, the Ld. CIT(A) has erred in deleting the addition
of Rs. 10,00,000/- made u/s. 68 of the I.T. Act being
the bogus share application money and Rs. 20,000/-
on account of unaccounted commission.
2.1 Ld. CIT(A) has ignored the fact that the assessee failed
to discharge the onus of proving the creditworthiness
of the creditors and genuineness of the transaction.
2.2 The Ld. CIT(A) has ignored the material finding of the
AO and investigation made during assessment
proceedings.
3. The applicant craves leave to add, to alter, or amend
any grounds of the appeal raised above at the time
of hearing.
3. The grounds raised in the Assessee's Cross Objection being
3/Del/2010 (A.Y. 2005-06) read as under:-
"1. That under the facts and circumstances, the
proceedings u/s. 147/148 are absolutely illegal, bad in
law and without jurisdiction, therefore, consequential
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ITA NO.4327/Del/2009 &
CO NO. 3/DEL/2010
assessment framed u/s. 147/143(3) is also illegal and
unsustainable.
2. That the Ld. CIT(A) has been fully justified in law
as well as on merits in deleting addition of Rs. 10 lacs
made u/s. 68 for share capital received during the
year and of Rs. 20,000/- for alleged commission
estimated @2% thereon."
4. At the threshold we find 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).
5. Ld. DR supported the order of the AO.
6. In this case notice was sent to both the parties on the address
given by them, however, none appeared on behalf of the assessee
nor any request for adjournment is filed. In view of the above, we are
of the considered opinion that no useful purpose would be served to
adjourn the case again and again. Therefore, we are deciding the
Appeal, exparte qua assessee, after hearing the Ld. DR and perusing
the records available on record.
7. After considering the submissions of Ld. DR 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.
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ITA NO.4327/Del/2009 &
CO NO. 3/DEL/2010
(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.
(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
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ITA NO.4327/Del/2009 &
CO NO. 3/DEL/2010
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'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 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/-.
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.
ASSESSEE 'S CROSS OBJECTION
15. Since we have dismissed the Revenue's appeal as aforesaid,
therefore, the Cross Objection filed by the Assessee has become
infructuous and as such dismissed.
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ITA NO.4327/Del/2009 &
CO NO. 3/DEL/2010
16. In the result, the Appeal filed by the Revenue stands dismissed
and Cross Objections filed by the Assessee is also dismissed, as
infructous.
Order pronounced in the Open Court 29-6-2015.
Sd/- Sd/-
[S.V. MEHROTRA] [H.S. SIDHU]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Date 29/6/2015
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant -
2. Respondent -
3. CIT
4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
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