Case Law Details

Case Name : ITO Vs Santosh Kumar (HUF) (ITAT Delhi)
Appeal Number : ITA No. 2981/Del./2010, C.O. No. 242/Del./ 2010
Date of Judgement/Order : 16/06/2015
Related Assessment Year : 2002-03
Courts : All ITAT (5165) ITAT Delhi (1161)

BRIEF FACTS OF THE CASE AND QUESTION OF LAW

Brief Facts and Question of Law:

This appeal by the Department and the cross objection by the assessee are directed against the order dated 21/01/2010 of the Ld. CIT (A) Bareilly. The question of law arose in this case was that under the circumstances of the case, whether commissioner of Income Tax (Appeal), Bareilly was justified in deleting the addition made by the AO at Rs. 12 lakh u/s 69A of the IT Act 1961.

CONTENTION OF THE ASSESSEE

The contention of the assessee was 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 Section 268A of the Income Tax Act, 1961 (hereinafter to be referred as the Act).

CONTENTION OF THE REVENUE

The Revenue supported the order of the Assessing Officer, but could not controvert the fact that tax effect in this appeal is less than Rs.4,00,000/-.

HELD BY ITAT, NEW DELHI

After hearing the rival contentions, ITAT held that, Section 268A has been inserted by the Finance Act, 2008 with retrospective effect from 01/04/99, thus the department ought not to have filed the appeal as per section 268A of the Act since the tax effect in the instant case is less than the amount prescribed for not filing the appeal. It also further noticed the CBDT has revised the monetary limit to Rs. 4,00,000/- for filing the appeal before the Tribunal. 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, 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 Hon’ble Punjab & Haryana High Court:-

  1. CIT v Oscar Laboratories P. Ltd (2010) 324 ITR 115 (P&H)
  2. CIT v Abinash Gupta (2010) 327 ITR 619 (P&H)
  3. CIT v Varindera Construction Co. (2011) 331 ITR 449 (P&H)(FB)

Similarly the Hon’ble Delhi High Court in the case of CIT v. 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 v. M/s. P.S. Jain & Co. held that such circular would also be applicable to pending cases.

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, we are 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 ITAT is Rs. 4.00 lakhs.In view of the above, the appeal filed by the Revenue was dismissed.

Cross objection of the assessee in C.O.No. 242/Del/2010.13.

ITAT held that as regards to the cross objection filed by the assessee, the ld.Counsel for the assessee submitted that he has the instruction not to press the same and gave in writing. Accordingly the C.O. is dismissed as not pressed. In the result, appeal of the department and Cross Objection of the assessee are dismissed.

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