As per instruction 3/2011 issued by CBDT on 09.02.2011 if tax effect less than 3 lakh appeal cannot be made before Appeallat Tribunal

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH  “C” New Delhi

BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER

AND

SHRI C.M. GARG, JUDICIAL MEMBER

I.T.A. No. 1543/Del/2012

A.Y.: 2008-09

ITO, Ward 28(1),

Room No. 213, 2nd floor,

Drum Shape Building,

New Delhi

(Appellant)

Vs.

 M/s Indraprastha Suppliers,

509, Khari Baoli, Delhi

(PAN/GIR NO.: AAAFI-1195E)

(Respondent)

AND

Cross Objection No. 185/Del/2012

(IN ITA No. 1543/Del/2012)

A.Y... : 2008-09

M/s Indraprastha Suppliers,

509, Khari Baoli,

Delhi

(Appellant)

Vs.

ITO, Ward 28(1),

New Delhi

(Respondent)

Assessee by:  Sh. Avdesh Bansal, CA

Department by: Sh. RIS Gill, Sr. D.R.

ORDER

PER SHAMIM YAHYA: AM

This appeal by the Revenue and Cross Objection by the assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals)-XXV, New Delhi dated 19.1.2012 and pertain to assessment year 2008-09.

2. The grounds raised in the Revenue’s appeal read as under:-

“(i) On the facts and circumstances of the case, the Ld. Commissioner of Income Tax (Appeals)-XXV, New Delhi erred in deleting the addition of ` 5,62,281/- made by the AO on account of treating the sale of land as sale of business asset and directing the AO to assess it as Long Term Capital Gain.

(ii) The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.”

3. The grounds raised in the Assessee’s Cross objection read as under:-

(i) That the Ld. AO erred in law and on facts in preferring the present appeal in violation of instruction no. 3 dated 9^th Feb., 2011 issued by CBDT vide F.No. 279/Misc. 142/2007- ITJ.

It is prayed that the Departmental appeal may be held as non-maintainable or any other relief which may he deemed on fit be provided.”

4. At the threshold, we note that tax effect in this case is less than `3 lacs fixed by the CBDT for filing appeal before the tribunal. As per Instruction No. 3/2011 (F.No. 279/Misc./142/2007-ITJ) dated 09.02.2011 issued by the CBDT, the tax effect for filing appeal before the Appellate Tribunal should be more than ` 3 lakhs. The aforesaid instructions have been held to be applicable to all pending appeals by the Hon’ble Delhi High Court in the decisions in the cases:-

(i) C.I.T. vs. M/s P.S. Jain & Co. in ITA No. 179/1991, order dated 2^nd August, 2010.

(ii) C.I.T. vs. Delhi Race Club in ITA No. 128/2008, order dated 3rd March, 2011.

4.1 In the present case, admittedly the tax is below `3 lakhs. Hence, the appeal is in contravention of the aforesaid CBDT Circular/Instruction. Hence, the same is liable to be dismissed. Accordingly, this appeal by the revenue stands dismissed for tax effect.

5. In the Cross Objection assessee had pleaded that the appeal should be dismissed on account of low tax effect. Since we have already dismissed the Revenue’s appeal on account of tax effect. Hence, the Cross objection stands allowed.

6. In the result, the Revenue’s appeal stands dismissed and assessee’s Cross objection stands allowed.

Order pronounced in the Open Court on 06/6/2012.

                                                     Sd/-                           Sd/-

                                          [C.M. GARG]        [SHAMIM YAHYA]

                              JUDICIAL MEMBER    ACCOUNTANT MEMBER

Date 06/6/2012

SRBHATNAGAR

Copy forwarded to: -

1. Appellant

2. Respondent

3. CIT

4. CIT (A)

5. DR, ITAT

TRUE COPY

By Order,

Assistant Registrar, ITAT, Delhi Benches