ITO Ward 1 (1), v. Vijay Prakash Jain,

ITA 4339/DEL/2007 | 1992-1993
Pronouncement Date: 14-03-2011 | Result: Dismissed

Appeal Details

RSA Number 433920114 RSA 2007
Assessee PAN AANPJ1154B
Bench Delhi
Appeal Number ITA 4339/DEL/2007
Duration Of Justice 3 year(s) 4 month(s) 15 day(s)
Appellant ITO Ward 1 (1),
Respondent Vijay Prakash Jain,
Appeal Type Income Tax Appeal
Pronouncement Date 14-03-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted I
Tribunal Order Date 14-03-2011
Date Of Final Hearing 14-03-2011
Next Hearing Date 14-03-2011
Assessment Year 1992-1993
Appeal Filed On 29-10-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH I II I : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI R.P.TOLANI JM AND SHRI SHAMIM YAHYA A M BEFORE SHRI R.P.TOLANI JM AND SHRI SHAMIM YAHYA A M BEFORE SHRI R.P.TOLANI JM AND SHRI SHAMIM YAHYA A M BEFORE SHRI R.P.TOLANI JM AND SHRI SHAMIM YAHYA A M ITA NO. ITA NO. ITA NO. ITA NO.434 434 434 4341 11 1/DEL/2007 /DEL/2007 /DEL/2007 /DEL/2007 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 1992 1992 1992 1992- -- -93 9393 93 SHRI VIJAY PRAKASH JAIN SHRI VIJAY PRAKASH JAIN SHRI VIJAY PRAKASH JAIN SHRI VIJAY PRAKASH JAIN 195 POLICE STREET 195 POLICE STREET 195 POLICE STREET 195 POLICE STREET MEERUT CANTT. MEERUT CANTT. MEERUT CANTT. MEERUT CANTT. PAN NO.AANPJ1154B. PAN NO.AANPJ1154B. PAN NO.AANPJ1154B. PAN NO.AANPJ1154B. VS. VS. VS. VS. AS ASAS ASSTT.COMMISSIONER OF INCOME TAX STT.COMMISSIONER OF INCOME TAX STT.COMMISSIONER OF INCOME TAX STT.COMMISSIONER OF INCOME TAX CIRCLE CIRCLE CIRCLE CIRCLE- -- -2 2 2 2 MEERUT. MEERUT. MEERUT. MEERUT. (APPELLANT) (RESPONDENT) ITA NO.4339/DEL/2007 ITA NO.4339/DEL/2007 ITA NO.4339/DEL/2007 ITA NO.4339/DEL/2007 ASSESSMENT YEAR : 1992 ASSESSMENT YEAR : 1992 ASSESSMENT YEAR : 1992 ASSESSMENT YEAR : 1992- -- -93 9393 93 ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF INCOME TAX INCOME TAX INCOME TAX INCOME TAX CIRCLE CIRCLE CIRCLE CIRCLE- -- -2 2 2 2 MEERUT. MEERUT. MEERUT. MEERUT. VS. VS. VS. VS. SHRI VIJAY PRAKASH JAIN SHRI VIJAY PRAKASH JAIN SHRI VIJAY PRAKASH JAIN SHRI VIJAY PRAKASH JAIN 195 POLICE STREET 195 POLICE STREET 195 POLICE STREET 195 POLICE STREET MEERUT CANT MEERUT CANT MEERUT CANT MEERUT CANTT. T.T. T. PAN NO.AANPJ1154B. PAN NO.AANPJ1154B. PAN NO.AANPJ1154B. PAN NO.AANPJ1154B. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRASHANT JAIN ADVOCATE. REVENUE BY : SMT.BANITA DEVI NAOREM SR.DR ORDER ORDER ORDER ORDER PER R.P.TOLANI J PER R.P.TOLANI J PER R.P.TOLANI J PER R.P.TOLANI JM : M : M : M : THESE ARE CROSS-APPEALS ONE BY THE ASSESSEE AND O THER BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 11.7.200 7 RELATING TO AY 1992-93. 2. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT ASSESSEE IS ONE OF THE 1/4 TH CO-OWNERS IN PROPERTY THE OTHER CO-OWNERS BEING SMT. PUSHPA DEVI JAIN AND SHRI CHANDER PRAKAS H JAIN. THE ISSUE IN QUESTION PERTAINS TO ABOUT THE YEAR OF CHARGEABI LITY OF CAPITAL GAINS. THE ASSESSEE CLAIMED IT TO BE CHARGEABLE FOR AY 199 9-2000 WHEREAS THE AO HELD IT TO BE CHARGEABLE FOR AY 1992-93. TH E ASSESSEES APPEAL PERTAINS TO YEAR OF TAXABILITY OF CAPITAL GAINS VIS -A-VIS INTEREST U/S 2 220(2) WHEREAS THE REVENUES GROUND PERTAINS TO DEL ETION OF INTEREST PAYABLE U/S 234A AND 234B OF THE INCOME-TAX ACT 19 61. THE LEARNED COUNSEL SUBMITTED THAT THE DISPUTE ABOUT THE YEAR O F CHARGEABILITY HAS BEEN SETTLED BY THE ITAT IN THE JUDGMENT IN CASE OF ONE OF THE CO- OWNERS SMT. PUSHPA DEVI JAIN. 3. IN THE CASE OF SHRI CHANDER PRAKASH JAIN THE IS SUE ABOUT SIMILAR GROUND IN ASSESSEES AND REVENUES APPEAL CAME TO B E ADJUDICATED IN THE ORDER OF THE TRIBUNAL IN ITA NO.1059/DEL/2006 D ATED 28.12.2010 WHEREIN ITAT DISMISSED BOTH THE APPEALS FILED BY TH E ASSESSEE AND THE REVENUE BY FOLLOWING OBSERVATIONS:- 3. LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OU T SET CONTENDS THAT REVENUES APPEAL IS NOT MAINTAINABLE INASMUCH AS CBDT HAS GIVEN BINDING DIRECTIONS ON DEPARTMENT THAT NO REVENUE APPEAL SHALL BE FILED IN A CASE WHICH INVOLVES TAX REVENUE LESS THAN RS. 2 LACS. TH IS HAS BEEN SPECIFICALLY CLARIFIED THAT TAX EFFECT WILL IN CLUDE ONLY THE ELEMENT TAX AND NOT INTEREST. THE IMPUGNED APP EAL OF THE DEPARTMENT IS AGAINST INTEREST ONLY AND DOES NO T INVOLVE ANY TAX ELEMENT. THUS THE TAX EFFECT INVOL VED IN THE REVENUES APPEAL IN TERMS OF BOARDS CIRCULAR IS NIL. 3.1. IT IS SUBMITTED THAT TAX DOES NOT INCLUDE INTE REST AS HELD IN THE CASES OF HARSHAD SHANTI LAL MEHTA VS. CUSTODIAN & OTHERS 231 ITR 871. IN CIT VS. CAMCO CO LOR CO. (2002) 254 ITR 565 (BOM.) IT HAS BEEN HELD THAT CI RCULAR PRESCRIBING MONETARY LIMITS IS BINDING ON REVENUE. 3.2. FURTHER IN THE CASE OF CIT VS. RAJENDRA PRASAD SHARMA 2007 (10) MTC 814 (ALL) IT HAS BEEN HELD TH AT IN VIEW OF BOARD CIRCULAR APPEAL SHOULD NOT HAVE BEEN FILED. HE SUBMITTED THAT THE CASE OF THE ASSESSEE IS IN ACCORDANCE WITH THE BINDING PRECEDENTS OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF BULAND MOTORS & LAND FINANCE P. LTD. 247 ITR 701 ; AND THAT OF HONBLE S UPREME COURT IN THE CASE OF CIT VS. N.D. GEORGE 231 ITR 50 4 HOLDING AS UNDER: IN OUR OPINION THE ABOVE DECISION SQUARELY APPLY T O THE FACTS OF THE PRESENT CASE AS ADMITTEDLY THE INCOME ASSESSED FOR THE ASSESSMENT YEAR 1989-90 WAS A LOSS . HENCE THERE WAS NO LIABILITY OF THE ASSESSEE TO PAY 3 ADVANCE TAX ON THE BASIS OF HIS ESTIMAT4E OF HIS CU RRENT INCOME FOR THE ASSESSMENT YEAR 1990-91. MOREOVER T HERE WAS NO ORDER OF THE ASSESSING OFFICER UNDER SECTION 210(3). HENCE NO INTEREST WAS PAYABLE UNDER SECTION 234B. 3.3. IT IS PLEADED THAT APPEAL FILED BY THE REVENU E IS THUS CONTRARY TO INSTRUCTION NO. 1979 DATED 27-3-2000 AS REVISED BY INSTRUCTION NO. 2 OF 2005 DATED 24-10-20 05 ISSUED BY THE CBDT RAISING THE MONETARY LIMIT OF TA X EFFECT OF RS. 2 00 000/- FOR FILING APPEALS BEFORE THE ITA T. THE SAME HAS FURTHER BEEN REITERATED BY INSTRUCTION NO. 5 OF 2008 DATED 15.5.2008. THE HONBLE SUPREME COURT IN 267 ITR 272 HAS HELD THAT IT IS NOT OPEN TO THE REVENUE TO ADVANCE AN ARGUMENT OR FILE AN APPEAL CONTRARY TO T HE CIRCULARS OF THE BOARD. IN (2007) 13 SCC 154 THE HO NBLE SUPREME COURT HAS HELD THAT CENTRAL GOVT. CANNOT IN ABSENCE OF STATUTORY PROVISIONS ACT BEYOND ITS PR OFESSED POLICY. 3.4. LEARNED COUNSEL PLEADS THAT TAX EFFECT IN THE APPEAL FILED BY THE REVENUE IS NIL AND NOT FALLING IN AN Y EXCEPTIONS. THE DISPUTE RELATES TO CHARGING OF INTE REST U/S 234A AND 234B; THE INTEREST IS EXCLUDED FROM THE EXPRESSION TAX EFFECT. THUS APPEAL FILED BY THE R EVENUE IS CONTRARY TO INSTRUCTIONS OF BOARD AND IS NOT MAINTA INABLE. 4. THE LEARNED DR THOUGH AGREED THAT TAX EFFECT FOR THE PURPOSE OF FILING REVENUES APPEAL HAS BEEN SPECIF ICALLY PRESCRIBED TO INCLUDE ONLY TAX ELEMENT AND NOT THE INTEREST HOWEVER IT IS CONTENDED THAT REVENUES APPEAL IS MAINTAINABLE AS TOTAL DEMAND IS ABOVE RS. 2 LACS I NVOLVING QUESTION OF LAW. IT IS FURTHER PLEADED THAT HONBL E SUPREME COURTS DECISION IN THE CASE OF KALYAN KUMAR RAI V S. CIT 191 ITR 634 HAS BEEN REPEATEDLY FOLLOWED BY VARIOUS BENCHES OF THE ITAT FOR THE PROPOSITION THAT ITNS 1 50 IS PART OF THE ASSESSMENT ORDER THERE IS SPECIFIC DIR ECTION TO LEVY INTEREST. FURTHER IN THE CASE OF CIT VS. ANJU M M.H. GHASWALA & OTHERS 252 ITR 1 (SC) THE HONBLE SUPRE ME COURT HAS HELD THAT INTEREST U/S 234A & 234B IS MECHANICAL IN NATURE. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. QU A REVENUES APPEAL IN OUR VIEW THE SAME IS HIT BY T HE BOARDS CIRCULAR PRESCRIBING MONETARY LIMITS FOR PR EFERRING REVENUES APPEAL. IT HAS BEEN CLEARLY PRESCRIBED TH AT TAX EFFECT OF RS. 2 LACS WILL INCLUDE ONLY THE ELEMENT OF TAX CHARGED AND NOT THE INTEREST. IN VIEW THEREOF WE A RE INCLINED TO HOLD THAT REVENUES APPEAL IS NOT MAINT AINABLE HENCE THE SAME STANDS DISMISSED. 4 5.1. APROPOS ASSESSEES APPEAL WE SEE NO INFIRMITY IN THE ORDER OF CIT(A) INASMUCH AS CIT(A) ANALYZING HONBL E SUPREME COURTS JUDGMENT IN THE CASE OF VIKRANT TYR ES LTD. 247 ITR 821 AND SECTION 3 OF THE VALIDATION ACT HAS HELD THAT BY INCORPORATION OF SECTION 3 OF THE VALIDATIO N ACT THE ORIGINAL DEMAND NOTICE STANDS RESTORED AND A FRESH NOTICE WAS NOT NECESSARY. IN VIEW THEREOF WE UPHOLD THE O RDER OF CIT(A) ON THE ISSUE OF LEVY OF INTEREST U/S 220(2). ASSESSEES APPEAL IS DISMISSED. 6. IN THE RESULT BOTH THE APPEALS FILED BY THE AS SESSEE AS WELL AS THE REVENUE STAND DISMISSED. 4. IT IS PLEADED THAT FACTS AND CIRCUMSTANCES BEING SIMILAR THE ASSESSEE BEING ONE OF THE CO-OWNERS THE ABOVE ITAT ORDER MAY BE FOLLOWED. 5. LEARNED DR REITERATED THE ARGUMENTS TAKEN BY THE LEARNED DR IN THE ABOVE CASE OF SHRI CHANDER PRAKASH JAIN (SUPRA) . 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. FACTS AND CIRCUMSTANCES IN THE CASE OF ASSESSEES CO-OWNER BEING SIMILAR TO OTHER CO-OWNER SHRI CHAND ER PRAKASH JAIN RESPECTFULLY FOLLOWING THE TRIBUNALS JUDGMENT CITE D SUPRA WE DISMISS BOTH THE APPEALS FILED BY THE ASSESSEE AND THE REVE NUE. 7. IN THE RESULT BOTH THE APPEALS FILED BY THE ASS ESSEE AS WELL AS THE REVENUE STAND DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 14 TH MARCH 2011. SD/- SD/- (SHAMIM YAHYA (SHAMIM YAHYA (SHAMIM YAHYA (SHAMIM YAHYA) )) ) (R.P.TOLANI (R.P.TOLANI (R.P.TOLANI (R.P.TOLANI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 14.03.2011. VK. 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR