1 ITA No. 1017/Del/14
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `SMC' NEW DELHI
BEFORE SMT DIVA SINGH, JUDICIAL MEMBER
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
ORDER
PER DIVA SINGH, JM
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
transaction.
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;
or
(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
Tribunal.
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
(P&H)(FB).
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.
Sd/-
(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
Date
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
Member.
5. Approved Draft comes to the 08 .07.2015 PS/PS
Sr.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
Clerk.
10. Date of dispatch of Order.
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