ITO, New Delhi v. Shri Gautam Murgai, New Delhi

ITA 4399/DEL/2013 | 2003-2004
Pronouncement Date: 31-07-2015 | Result: Dismissed

Appeal Details

RSA Number 439920114 RSA 2013
Assessee PAN AAGPM4791A
Bench Delhi
Appeal Number ITA 4399/DEL/2013
Duration Of Justice 2 year(s) 11 day(s)
Appellant ITO, New Delhi
Respondent Shri Gautam Murgai, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 31-07-2015
Date Of Final Hearing 09-07-2015
Next Hearing Date 09-07-2015
Assessment Year 2003-2004
Appeal Filed On 19-07-2013
Judgment Text
1 ITA NO. 4399 /D/2013 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SMT DIVA SINGH JUDICIAL MEMBER AND SH. N. K. SAINI ACCOUNTANT MEMBER I.T.A .NO. -4399/DEL/2013 (ASSESSMENT YEA R-2003-04) ITO WARD-44(3) ROOM NO- 210 D-BLOCK DR. S.P. MUKERJEE CIVIC CENTRE J.N. MARG NEW DELHI (APPELLANT) VS GAUTAM MURGAI B-53 SOUTH EXTENSION PART-II NEW DELHI. AAGPM4791A APPELLANT BY SH. T. VASANTHAN SR. DR RESPONDENT BY NONE ORDER PER DIVA SINGH JM BY THE PRESENT APPEAL THE REVENUE ASSAILS THE CORRE CTNESS OF THE ORDER DATED 25/06/2013 OF CIT(A)-XXX NEW DELHI WHICH IS A CONSOLIDATED ORDER FOR 2003-04 TO 2008-09 ASSESSMENT YEARS. THE FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVENUE IN 2003-04 ASSESSMENT YEAR: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) HAS (I) DELETING THE ADDITION OF RS. 12 55 299/- MADE BY TH E AO ON ACCOUNT OF UNEXPLAINED CASH CREDITS AND PAYMENTS OF CREDIT CARDS FROM UNDISCLOSED SOURCES. (II) TREATING THE UNEXPLAINED CASH CREDITS AS BUSINESS R ECEIPT AND DETERMINING INCOME FROM BUSINESS BY APPLYING NET PR OFIT @5% OF THE BUSINESS RECEIPTS BY IGNORING THE MATERIAL F ACT THAT THE ASSESSEE HAD FAILED TO PROVE THE SOURCES OF CASH CR EDITS. 2. NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING. CONSIDERING THE AMOUNTS INVOLVED THE LD. SR. DR SH RI T.VASANTHAN WAS REQUIRED TO ADDRESS THE BENCH ON THE TAX EFFECT INV OLVED IN THE PRESENT APPEAL. FOR THE SAID PURPOSE THE APPEAL WAS WAS PASSED OVE R. IN THE SECOND ROUND DATE OF HEARING 09.07.2015 DATE OF PRONOUNCEMENT 31.07.2015 2 ITA NO. 4399 /D/2013 THE LD. SR. DR SUBMITTED THAT THE TAX EFFECT IS MOR E THAN RS. 3 LAKHS. HOWEVER HE WAS REQUIRED TO ADDRESS THE TAX EFFECT AS PER TH E LATEST CBDT INSTRUCTION WHICH FIXES THE LIMIT AT RS. 4 LAKHS. THE LD. SR. DR STATED THAT THE TAX EFFECT IS NO DOUBT LESS THAN RS. 4 LAKHS. HOWEVER IT WAS ST ATED THAT IT WAS WITHIN THE TAX LIMIT AS PER THE EARLIER INSTRUCTION WHEN THE A PPEAL WAS FILED ON 19/07/2013. THE ATTENTION OF THE LD. SR. DR WAS IN VITED TO THE CONSISTENT VIEW TAKEN BY THE COORDINATE BENCHES SIT TING AT DELHI WHERE FOLLOWING THE LATEST INSTRUCTION NO. 5 OF 201 4 THE DEPARTMENTAL APPEALS RELYING ON THE DECISION OF THE JURISDICTIONAL HIGH COURT ARE BEING DISMISSED. THE SAID POSITION WAS NOT CONTROVERTED BY THE LD. SR. DR ALTHOUGH HE SUPPORTE D THE ORDER OF THE A.O. IN THE ABOVE STATED FACTUAL POSITION CONS IDERING 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 AUTH ORITIES FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATI ON FOR REFERENCE BY ANY INCOME-TAX AUTHORITY UNDER THE PRO VISIONS 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 F OR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE F OR ANY ASSESSMENT YEAR IT SHALL NOT PRECLUDE SUCH AUTHORI TY FROM FILING AN APPEAL OR APPLICATION FOR REFERENCE ON TH E SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION F OR REFERENCE HAS BEEN FILED BY AN INCOME-TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTION S ISSUED UNDER SUB-SECTION (1) IT SHALL NOT BE LAWFUL FOR A N ASSESSEE BEING A PARTY IN ANY APPEAL OR REFERENCE TO CONTEND THAT THE INCOME-TAX AUTHORITY HAS ACQUIESCE D IN THE DECISION ON THE DISPUTED ISSUE BY NOT FILING AN APP EAL OR APPLICATION FOR REFERENCE IN ANY CASE. 3 ITA NO. 4399 /D/2013 (4) THE APPELLATE TRIBUNAL OR COURT HEARING SUCH A PPEAL OR REFERENCE SHALL HAVE REGARD TO THE ORDERS INSTRUC TIONS OR DIRECTIONS ISSUED UNDER SUB-SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATIO N 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 FILI NG AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB-SECTION (1) AND THE PROVISION S OF SUB-SECTIONS (2) (3) AND (4) SHALL APPLY ACCORDING LY.] 3. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N 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 OU GHT NOT TO HAVE BEEN FILED BY THE DEPARTMENT SINCE THE TAX EFFECT I N THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING T HE APPEAL. 4. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTI ON NO.5 OF 2014 DATED 10.07.2014 BY WHICH THE CBDT HAS REVISE D THE MONETARY LIMIT TO RS. 4 00 000/- FOR FILING THE AP PEAL BEFORE THE TRIBUNAL. 5. KEEPING IN VIEW THE CBDT INSTRUCTION NO.5 OF 201 4 DATED 10.07.2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT 1961 WE ARE OF THE VIEW THAT THE REVENUE SHOU LD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAK ING 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 4 49 (P&H)(FB). 6. SIMILARLY THE HONBLE DELHI HIGH COURT IN THE CA SE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008 ORDER DATE D 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. 4 ITA NO. 4399 /D/2013 7. FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HI GH COURT IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE BY K EEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES WE ARE OF THE CONSIDERED VIEW THAT INSTRUCTION NO.5/14 DATED 10.0 7.2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES AL SO AND IN THE SAID INSTRUCTIONS MONETARY TAX LIMIT FOR NOT FILIN G THE APPEAL BEFORE THE ITAT IS RS. 4.00 LAKHS. 8. IN VIEW OF THE ABOVE WITHOUT GOING INTO MERITS OF THE CASE WE DISMISS THE APPEAL FILED BY THE REVENUE. THE SAID O RDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES. 9. IN THE RESULT THE APPEAL OF THE REVENUE STANDS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31 ST JULY 2015. SD/- SD/- (N.K. SAINI) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31/07/2015 *KAVITA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 4399 /D/2013 DATE 1. DRAFT DICTATED ON 09.07.2015 2. DRAFT PLACED BEFORE AUTHOR 30.07.2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 31.07.2015 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 31.07.2015 5. APPROVED DRAFT COMES TO THE SR.PS/PS 31.07.2015 6. KEPT FOR PRONOUNCEMENT ON 31.07.2015 7. FILE SENT TO THE BENCH CLERK 31.07.2015 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.