I.T.A. NOS. 665 & 666/DEL/2011
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "SMC" NEW DELHI
BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
I.T.A. Nos. 665 & 666/Del/2011
F.Yrs. : 2005-06 & 2006-07
ACIT, Circle 50(1), vs. M/s Indian Express Newspapers
R.No. 503, 5th floor, Aaykar Bhavan, Mumbai Limited,
Laxmi Nagar, Delhi (Presently known as the Indian
Express Newspaper),
A-8, Sector-7, Noida (UP)
(PAN/GIR NO. : AACCT1148F)
(Appellant ) (Respondent )
Assessee by : Sh. K.V.S.R. Krishna, CA
Department by : Dr. B.R.R. Kumar, Sr. D.R.
ORDER
Theses appeals by the Revenue are directed against the order of
the Ld. Commissioner of Income Tax (Appeals)-XXX, New Delhi dated
16.11.2010 and pertain to financial years 2005-06 & 2006-07.
2. The grounds raised in the I.T.A. No. 665/Del/2011 read as
under:-
"On the facts and in the circumstances of the case as well
as in law, the Ld. Commissioner of Income Tax (A) has erred
in
i) Holding that there is no liability for deduction of tax at
source and as the deductee assessee is exempted
from tax, there cannot be any liability of interest u/s.
1
I.T.A. NOS. 665 & 666/DEL/2011
201(A). The interest cannot be computed on zero
principal.
ii) Not following the order of Hon'ble Supreme court in
the case of Hindustan Coco Cola Beverages Pvt. Ltd.
vs. C.I.T. in (2007) 293 ITR (SC) wherein it is held that
no demand visualize u/s. 201(1) should be enforced
after the deductor has satisfied the TDS Officer in
charge of TDS that taxes have been paid by the
deductee assessee. However, this will not alter the
liability to charge interest u/s. 201(1A) till the date of
payment of taxes by the deductee assessee or the
liability for penalty u/s. 201(1A) till the date of
payment of taxes by the deductee assessee or the
liability for penalty u/s. 271(1)(c) of the I.T. Act.
iii) Though the revenue effect is ` 1,42,150/- only which
is less than the monetary limit prescribed by the
Board, since the legal issue is involved in this case,
appeal to the ITAT is being filed in view of the clause
(a) of para 8 of the Board Instruction No. 05/2008
dated 15.5.2008.
The appellant craves leave to add, alter or amend any
of the grounds of appeal at the time of hearing."
3. The grounds raised in the I.T.A. No. 666/Del/2011 read as
under:-
"On the facts and in the circumstances of the case as well
as in law, the Ld. Commissioner of Income Tax (A) has erred
in
2
I.T.A. NOS. 665 & 666/DEL/2011
i) Holding that there is no liability for deduction of tax at
source and as the deductee assessee is exempted
from tax, there cannot be any liability of interest u/s.
201(A). The interest cannot be computed on zero
principal.
ii) Not following the order of Hon'ble Supreme court in
the case of Hindustan Coco Cola Beverages Pvt. Ltd.
vs. C.I.T. in (2007) 293 ITR (SC) wherein it is held that
no demand visualize u/s. 201(1) should be enforced
after the deductor has satisfied the TDS Officer in
charge of TDS that taxes have been paid by the
deductee assessee. However, this will not alter the
liability to charge interest u/s. 201(1A) till the date of
payment of taxes by the deductee assessee or the
liability for penalty u/s. 201(1A) till the date of
payment of taxes by the deductee assessee or the
liability for penalty u/s. 271(1)(c) of the I.T. Act.
iii) Though the revenue effect is ` 1,42,150/- only which
is less than the monetary limit prescribed by the
Board, since the legal issue is involved in this case,
appeal to the ITAT is being filed in view of the clause
(a) of para 8 of the Board Instruction No. 05/2008
dated 15.5.2008.
The appellant craves leave to add, alter or amend any
of the grounds of appeal at the time of hearing."
4. At the threshold, we note that tax effect in these cases are less than
` 3 lacs fixed by the CBDT for filing appeal before the tribunal. As per
3
I.T.A. NOS. 665 & 666/DEL/2011
Instruction No. 3/2011 (F.No. 279/Misc./142/2007-ITJ) dated 09.02.2011
issued by the CBDT, the tax effect for filing appeal before the Appellate
Tribunal should be more than ` 3 lakhs. The aforesaid instructions have
been held to be applicable to all pending appeals by the Hon'ble Delhi High
Court in the decisions in the cases:-
(i) C.I.T. vs. M/s P.S. Jain & Co. in ITA No. 179/1991, order dated 2nd
August, 2010.
(ii) C.I.T. vs. Delhi Race Club in ITA No. 128/2008, order dated 3rd March,
2011.
4.1 I further find that clause (a) of para 8 of the Board instruction No. 5/
2008 dated 15.5.2008 provides the following:
"8. Adverse judgements relating to the following should be
contested irrespective of the tax effect.
(a) Where the Constitutional validity of the provisions of an Act
or Rule are under challenge.
(b) Where Board's order, Notification, Instruction or Circular
has been held to be illegal or ultra virus.
(c) Where Revenue Audit objection in the case has been
accepted by the Department."
4.2 A reading of the above signifies that ground no. (iii) taken in Revenue
appeals are not sustainable.
4
I.T.A. NOS. 665 & 666/DEL/2011
5. In the present cases, admittedly the tax is below
` 3 lakhs. Hence, the appeals are in contravention of the aforesaid CBDT
Circular/Instruction. Hence, the same are liable to be dismissed.
Accordingly, these appeals by the revenue stand dismissed for tax effect.
6. In the result, both the Revenue appeals stand dismissed.
Order pronounced in the Open Court on 26/7/2012.
Sd/-
[SHAMIM YAHYA]
ACCOUNTANT MEMBER
Date 26/7/2012
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
5
|