THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH `F', NEW DELHI
Before Sh. N. K. Saini, AM And Sh. H. S. Sidhu, JM
ITA No. 5407/Del/2011 : Asstt. Year : 2008-09
Income Tax Officer, Vs Shri Pawan Kumar
Ward-1, C/o Shri K.C. Aneja & Co. (ITP),
Panipat 135-R, Model Town
Panipat-132103
(APPELLANT) (RESPONDENT)
CO No. 40/Del/2013 : Asstt. Year : 2008-09
Shri Pawan Kumar Vs Income Tax Officer,
C/o Shri K.C. Aneja & Co. (ITP), Ward-1,
135-R, Model Town Panipat
Panipat-132103
(APPELLANT) (RESPONDENT)
PAN No.ATPLK9846L
Assessee by : None
Revenue by : Sh. Vikram Sahay, Sr. DR
Date of Hearing : 29.05.2015 Date of Pronouncement : 29.05.2015
ORDER
Per N. K. Saini, AM:
This appeal by the department and the Cross Objection of
the assessee are directed against the order dated 16.09.2011 of
ld. CIT(A), Karnal.
2. During the course of hearing nobody was present on
behalf of the assessee neither any adjournment was sought.
2 ITA No.5407/Del/2011 & CO 40/Del/2013
Pawan Kumar
We, therefore, proceed to disposed of the departmental appeal
ex-parte qua the assessee.
3. In the present case, the ld. D.R., although supported the
order of the Assessing Officer, but could not controvert this
fact that tax effect in this appeal is less than Rs.4,00,000/-.
4. After considering the submissions of the ld. D.R. and the
material on record, it is noticed that Section 268A has been
inserted by the Finance Act, 2008 with retrospective effect
from 01/04/99. The 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.
(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
3 ITA No.5407/Del/2011 & CO 40/Del/2013
Pawan Kumar
(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.] "
5. It is not in dispute that the Board ' s instruction or
directions issued to the income-tax authorities are binding on
those authorities, therefore, the department ought not to have
filed the appeal in view of the above said provisions
mentioned in section 268A of the Act since the tax effect in
the instant case is less than the amount prescribed for not
filing the appeal.
4 ITA No.5407/Del/2011 & CO 40/Del/2013
Pawan Kumar
6. 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.
7. 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)
8. 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.
9. From the ratio laid down by the Hon ' ble Delhi High
Court, it is clear that the instructions issued in the Circulars by
5 ITA No.5407/Del/2011 & CO 40/Del/2013
Pawan Kumar
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.
10. In view of the above, without going into merits of the
case, we dismiss the appeal filed by the Revenue.
11. As regards to the Cross Objection filed by the assessee is
concerned, it becomes infructuous since we have dismissed the
appeal of the department in the former part of this order.
12. In the result, appeal of the Revenue and Cross Objection
of the assessee are dismissed.
(Order Pronounced in the Court on 29/05/2015)
Sd/- Sd/-
(H. S. Sidhu) (N. K. Saini)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 29/05/2015
*Subodh*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
ASSISTANT REGISTRAR
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