ITO, New Delhi v. M/s Amcon Engineers (P) Ltd., New Delhi

ITA 2256/DEL/2011 | 2008-2009
Pronouncement Date: 25-07-2011 | Result: Dismissed

Appeal Details

RSA Number 225620114 RSA 2011
Bench Delhi
Appeal Number ITA 2256/DEL/2011
Duration Of Justice 2 month(s) 20 day(s)
Appellant ITO, New Delhi
Respondent M/s Amcon Engineers (P) Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 25-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted I
Tribunal Order Date 25-07-2011
Date Of Final Hearing 25-07-2011
Next Hearing Date 25-07-2011
Assessment Year 2008-2009
Appeal Filed On 05-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I NEW DELHI BEFORE SMT. DIVA SINGH JUDICIAL MEMBER AND SHRI B.K. HALDAR ACCOUNTANT MEMBER I.T.A NO. 2255 2257 2256/DEL/11 ASSTT. YEAR 2007-08 2009-10 2008-09 ITO WARD-49(1) ROOM NO. 401 AAYAKAR BHAWAN LAXMI NAGAR NEW DELHI. VS. AMCON ENGINEERS (P ) LTD. 308 ASHOK BHAWAN 93 NEHRU PLACE NEW DELHI - 19 DELA07331C (APPELLANT) (RESPONDENT) APPELLANT BY: DR. B.R.R. KUMAR SR. DR. RESPONDENT BY: SHRI O.P. SAPRA ADVOCATE ORDER PER BENCH THESE ARE THREE DEPARTMENTAL APPEALS FILED AGAINST THE CONSOLIDATED ORDER DATED 21.2.2011 OF CIT (A) XXX NEW DELHI PERTAINING TO A SSTT. YEAR 2007-08 2009-10 AND 2008-09 RESPECTIVELY. IN ALL THESE APPEAL THE REVEN UE IS AGITATING AGAINST THE ACTION OF THE CIT(A) IN QUASHING OF THE PENALTY ORDER U/S 272 A(2)/(K) ON THE GROUNDS OF BONAFIDE REASONS. 2. HOWEVER RIGHT AT THE OUTSET IT WAS SUBMITTED BY THE LD. AR THAT THE DEPARTMENTAL APPEALS ARE NOT MAINTAINABLE ON ACCOUN T OF THE FACT THAT THE SAME ARE MUCH BELOW THE MONETARY LIMIT AS HAS BEEN FIXED BY THE CBDT VIDE ITS CIRCULAR NO. ITA NO. 2255 2257 2256/DEL/11 ASSTT. YEAR 2007- 08 2009-10 2008-09 2 3/2011 DATED 9 TH FEBRUARY 2011. IN SUPPORT OF SAID THE ASSERTION IN REGARD TO THE AMOUNTS INVOLVED IT WAS SUBMITTED THAT THE SAME ARE AS UNDER :- FINANCIAL YEAR ASSESSMENT YEAR PENALTY LEVIED (RS.) 2006-07 2007-08 1 54 800 2007-08 2008-09 1 84 800 2008-09 2009-10 9 000 3. APART FROM RELYING UPON CBDT INSTRUCTION NO. 3/2011 DATED 9 TH FEBRUARY 2011 COPY OF WHICH WAS PLACED BEFORE THE BENCH REL IANCE WAS ALSO PLACED UPON THE FOLLOWING JUDGMENTS :- 1. [1999 U.P.T.C. 1072] MATHEW M. THOMAS & OTHER S VS. CIT (SUPREME COURT) 2. 232 ITR 207 CIT VS. ITAT (JURISDICTIONAL DELHI H.C.) 3. 254 ITR 565 CIT VS. CHEMCO COLOUR COM (BOMBAY H IGH COURT) FOLLOWED IN 276 ITR 519 CIT VS. PITHWA ENGG. WORKS (BOMBAY) 4. ANNEXURE A WAS FILED BEFORE THE BENCH SHOWING THE D ETAILS OF THE CALCULATIONS BY WAY OF WHICH THE FIGURES MENTIONED IN THE ABOVE CHART HAD BEEN ARRIVED AT. SPECIFIC ATTENTION WAS INVITED TO PARA 5 OF THE CBDT INSTRUC TION UNDER DISCUSSION SO AS TO CANVASS THAT THE DEPARTMENTAL APPEALS HAVE TO BE DI SMISSED. 5. LD. DR IN REGARD TO THE AMOUNTS INVOLVED IN THE THREE DEPARTMENTAL APPEALS STATED THAT THERE IS NO MISTAKE AND THE CALCULATION IS CORRECT. THE AMOUNTS INVOLVED ARE BELOW THE MONETARY LIMIT. HOWEVER IT WAS HIS SUBMIS SION THAT IN 2005-06 ASSTT. YEAR THE AMOUNT INVOLVED IS ABOVE THE MONETARY LIMIT. HO WEVER SINCE THE SAID APPEAL IS NOT FIXED BEFORE THE BENCH FOR ADJUDICATION AND THE O BJECTION OF THE ASSESSEE ARE POSED ITA NO. 2255 2257 2256/DEL/11 ASSTT. YEAR 2007- 08 2009-10 2008-09 3 ONLY TO THE APPEALS FIXED FOR HEARING THE SAID DEPA RTMENTAL OBJECTION HAS NO RELEVANCE. IN THE CIRCUMSTANCES THE LD. DR DID NOT DISPUTE TH E AMOUNT INVOLVED IN THE PRESENT APPEALS NO CONTRARY DECISION OF ANY HIGHER COURT OR ANY OBJECTION WAS CANVASSED BEFORE THE BENCH. 6. IT IS SEEN THAT THE INSTRUCTION NO.3/2011 OF 9 TH FEBRUARY 2011 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) FIXES THE MONE TARY LIMIT THE APPEAL IN THE INCOME-TAX MATTERS BEFORE THE TRIBUNAL AT RS.3 00 0 00/- ADMITTEDLY THE AMOUNTS IN EACH OF THE YEARS IS MUCH BELOW THIS LIMIT. IT IS A LSO SEEN THAT QUA THE ABOVE MENTIONED CBDT INSTRUCTION CO-ORDINATE BENCHES CONSISTENTLY F OLLOWING THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT HAVE BEEN UNANIMOUSLY DIS MISSING DEPARTMENTAL APPEALS. REFERENCE MAY BE MADE TO THE JUDGMENT OF DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA 128/2008 DATED 3 RD MARCH 2011 WHICH HAS HELD AS UNDER :- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S.4 65 860/-. AS PER RECENT GUIDELINES OF THE CBDT APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LESS THAN 10 LACS ARE NOT BE ENTERTAINED. THIS COURT IN THE CASE OF COMMISSIONER OF INCOME-TA X-III V. M/S. P.S. JAIN AND CO. BEING NO.179/1991 DECIDED ON 2 ND AUGUST 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 7. IN THE FACTS OF THE PRESENT CASE ADMITTEDLY THE TAX PAYABLE IN RESPECT OF GROUNDS OF APPEAL BY THE DEPARTMENT IS LESS THAN RS.3 LAKHS AND AS PER REVISED INSTRUCTION OF THE CBDT NO.3 DATED 9.2.2011 WHEREIN THE CBDT HAS R EVISED THE FILING LIMITS FOR APPEAL FILED BEFORE THE TRIBUNAL HIGH COURT AND SU PREME COURT AS UNDER:- ITA NO. 2255 2257 2256/DEL/11 ASSTT. YEAR 2007- 08 2009-10 2008-09 4 BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS.3 LA KHS APPEALS U/S 260A OF THE IT ACT BEFORE THE HONBLE HIGH COURT : RS.10 LAKHS AND BEFORE THE HONBLE SUPREME COURT : RS.25 LAKHS 8. REFERENCE MAY ALSO BE MADE TO THE DECISION OF HO NBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. ASHOK KUMAR MANIBHAI P ATEL & CO. (2009) 317 ITR 386 (MP). 9. IDENTICAL VIEW HAS BEEN TAKEN IN THE FOLLOWING O RDERS (1) ORDER OF ITAT MUMBAI BENCH `A MUMBAI IN THE C ASE OF ITO VS. SHRI ASHOK G. DHANDHARIAI IN ITA NO.2460/MUM./2010 DATED 28 TH FEBRUARY 2011 FOR THE ASSESSMENT YEAR 2005-06; & (2) ORDER OF ITAT DELHI BENCH `F NEW DELHI IN THE CASE OF ITO VS. M/S. PRS SECURITIES PVT. LTD. IN ITA NO.4447/2010 DATED 25. 03.2011 FOR THE ASSESSMENT YEAR 2001-02. 10. WE FURTHER FIND THAT IT IS A SETTLED LAW THAT T HE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRME D BY THE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATI ON LTD. REPORTED IN 267 ITR 272 WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DE CISIONS OF THE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID D OWN THAT WHEN A CIRCULAR ISSUED BY THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRAR Y TO THE TERMS OF THE STATUTE. THE APPEALS UNDER CONSIDERATION HAVE CERTAINLY BEEN FILED CONTR ARY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9.2.2011. ITA NO. 2255 2257 2256/DEL/11 ASSTT. YEAR 2007- 08 2009-10 2008-09 5 11. IN VIEW OF THE ABOVE WE HOLD THAT THE APPEALS FILED BY THE DEPARTMENT AGAINST THE IMPUGNED ORDER OF THE LD. CIT(A) ARE CONTRARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEALS FILED BY THE DEP ARTMENT ARE DISMISSED IN LIMINE . 12. IN THE RESULT APPEALS FILED BY THE REVENUE ARE DISMISSED. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ITSELF I.E. ON 25 TH JULY 2011. SD/- SD/- [B.K. HALDAR] [DIVA SINGH] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25.7.2011 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRA R ITAT