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DCIT, Central Circle, Meerut Vs. Sh.Vipul Goyal, 579, Sector-17, Faridabad
July, 10th 2015
                               1                                   ITA No. 1017/Del/14

                     DELHI BENCH: `SMC' NEW DELHI


                             I.T.A .No.-1017/Del/2014
                          (ASSESSMENT YEAR-2004-05)

            DCIT,                   vs Sh.Vipul Goyal,
            Central Circle,            579, Sector-17, Faridabad
            Meerut                     PAN-ADCPG2917R
            (APPELLANT)                (RESPONDENT)

                  Appellant by       Sh. Gagan Sood, Sr. DR
                  Respondent by      None

                      Date of Hearing             01.07.2015
                   Date of Pronouncement           08.07.2015


      The present appeal has been filed by the Revenue assailing the
correctness of the order dated 29.11.2013 of CIT(A), Meerut pertaining to
2004-05 assessment year.
2.    At the time of hearing an adjournment petition was moved on behalf of
the assessee however, the Ld. Sr. DR was required to address the amount of
tax involved in the present appeal. For which purpose the appeal was passed
over. In the second round when the appeal was called out the Ld. SR. DR Mr.
Gagan Sood addressing the following grounds raised in the present appeal
submitted that the tax effect is less than Rs. 4,00,000/:-
      1. "That the Ld. CIT(A) has erred in law in accepting the additional
         evidence filed by the assessee before him which were not produced
         during the course of assessment proceedings in violation of Rule
         46A of the I.T. Rules.
      2. That the Ld. CIT(A) has erred in law in deleting the addition of
         Rs.10,00,000/- made u/s 68 by admitting evidences in violation of
         Rule 46A.
                               2                                   ITA No. 1017/Del/14

     3. That the Ld. CIT(A) has erred in law and on facts in deleting the
        addition of Rs.50,000/- by incorrectly appreciating the facts that
        balance sheet and no bank account has been filed by the assessee
        to substantiate the creditworthiness and genuineness of the
     4. That the Ld. CIT(A has erred in law and on facts in deleting the
        addition of Rs.42,000/- made u/s 69 being unexplained
        expenditure ignoring the fact that the bill was in the name of the
        assessee and was seized during the search and was, therefore, an
        evidence in terms of section 292C of the I.T.Act."

3.   Where the tax effect admittedly is less than Rs.4,00,000/- which is
the limit for filing appeals before the I TAT for the Revenue as per
the latest 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).     In view thereof it is seen that the department
ought not to have filed this appeal.             The said position was not
controverted by the Ld. Sr. DR although he supported the order of
the A.O.    In the above stated factual position considering 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 Bo ard may, f rom time to time, issue orde rs,
     ins tr uctio ns or dir ectio ns to o ther inco me -tax au thor ities,
     f ixing such mone tar y limits as it may dee m f it, f or the
     purpose of regulating f iling of appeal or application f or
     ref erence by any inco me -tax author ity under the prov is ions
     of this Chapter.
     (2) Where, in pur suance of the orders, ins truc tio ns or
     d irec tio ns issued under sub-sectio n (1), an inco me -tax
     au thor ity has no t f iled any appe al or application f or
     ref erence on any issue in the case of an assessee f or any
     assess men t ye ar, it shall no t preclud e such author ity f ro m
     f iling an appe al o r application f or ref erence on the s ame
     issue in the case of --
     (a)       the s ame assessee f or any o ther assessmen t ye ar;
     (b)     any o ther assessee f or the same or any o ther
     assess men t ye ar.
     (3) No twiths tand ing that no appe al or applicatio n f or
     ref erence has been f iled by an inco me -tax author ity
     pursuant to the or ders or ins truc tions or directions iss ued
     under sub-section (1), it shall no t be lawf ul f or an
                                  3                                    ITA No. 1017/Del/14

          assessee, be ing a par ty in any appeal or ref erence, to
          contend that the in co me -tax au thor ity has acquiesced in the
          decis ion on the d isputed issue by no t f iling an appe al or
          application f or ref erence in any case.
          (4) The Appellate Tr ibunal or Cour t, hear ing such appe al or
          ref erence, shall have regard to the o rders, ins truc tions or
          d irec tio ns  issued    under      sub-section    (1)  and  the
          cir cums tances under which such appeal or application f or
          ref erence was f iled or no t f iled in respect of any case.
          (5) Every order, ins truc tio n or d ire ction which has be en
          issued by the Bo ard f ix ing mo ne tary limits f or f iling an
          appe al or application f or ref erence shall be dee med to have
          been issued under sub-sec tio n (1) and the prov is io ns of
          sub-sec tio ns (2), (3) and (4) shall apply accord ingly.]"

4.        It is not in dispute that the Board's instruction or directions
issued       to    the   income-tax        authorities   are   binding      on    these
authorities, therefore, the present appeal               in view of the above said
provisions mentioned in section 268 A of the Act ought not to have
been filed by the Department since the tax effect in the instant case
is less than the amount prescribed for not filing the appeal.
5.        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
6.        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, I am of the view that the Revenue should not have filed
the instant appeal before the Tribunal.              While taking such a view, I
am fortified by the following decisions of Hon'ble Punjab & Haryana
High Court:-
     1.       CIT v Oscar Labor ator ies P. L td (2010) 324 ITR 115 (P&H)
     2.       CIT v Abinash Gupta (2010) 327 ITR 619 (P&H)
     3.       CIT v Var inder a Cons tr uction Co. (2011) 331 ITR 449

7.        Similarly the Hon'ble Delhi High Court in the case of CIT v.
Delh i Race Club Ltd. in IT A No.128/2008, order d ated 03.03.2011 by
                            4                             ITA No. 1017/Del/14

following the earlier order dated 02.08.2010 in I TA No.179/1991 in
the case of CIT Delh i-III v. M/s. P.S. Jain & Co. held that such
circular would also be applicable to pending cases.
8.    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, I am 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 I TAT is Rs. 4.00 lakhs.
9.    In view of the above, without going into merits of the case, I
dismiss the appeal filed by the Revenue. The said order was
pronounced in the open court in the presence of the parties.
10.   In the result, appeal of the Revenue stand dismissed.
      The order is pronounced in the open court on 8th of July 2015.
                                                           (DIVA SINGH)
                                                      JUDICIAL MEMBER

Dated: 08/07/2015
*Amit Kumar/R.N*/Kavita

Copy forwarded to:

1.                        Appellant
2.                        Respondent
3.                        CIT
4.                        CIT(Appeals)
5.                        DR: ITAT
                                                  ASSISTANT REGISTRAR
                                                        ITAT NEW DELHI
                               5                                    ITA No. 1017/Del/14

1.    Draft dictated on                     01.07.2015      PS
2.    Draft placed before author            02.07.2015      PS
3.    Draft proposed & placed before the     08.7.2015      JM/AM
      second member
4.    Draft discussed/approved by Second    08.7.2015       JM/AM
5.    Approved Draft comes to the            08 .07.2015    PS/PS
6.    Kept for pronouncement on             08.07.2015      PS
7.    File sent to the Bench Clerk            08 .07.2015   PS
8.    Date on which file goes to the AR
9.    Date on which file goes to the Head
10.   Date of dispatch of Order.
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