Income Tax Appellate Tribunal - Delhi
Indian Express Newspapers Mumbai Ltd., ... vs Department Of Income Tax
I.T.A. NOS. 665 & 666/DEL/2011
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "SMC" NEW DELHI
BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
I.T.A. Nos. 665 & 666/Del/2011
F.Yrs. : 2005-06 & 2006-07
ACIT, Circle 50(1), vs. M/s Indian Express Newspapers
R.No. 503, 5th floor, Aaykar Bhavan, Mumbai Limited,
Laxmi Nagar, Delhi (Presently known as the Indian
Express Newspaper),
A-8, Sector-7, Noida (UP)
(PAN/GIR NO. : AACCT1148F)
(Appellant ) (Respondent )
Assessee by : Sh. K.V.S.R. Krishna, CA
Department by : Dr. B.R.R. Kumar, Sr. D.R.
ORDER
Theses appeals by the Revenue are directed against the order of the Ld. Commissioner of Income Tax (Appeals)-XXX, New Delhi dated 16.11.2010 and pertain to financial years 2005-06 & 2006-07.
2. The grounds raised in the I.T.A. No. 665/Del/2011 read as under:-
"On the facts and in the circumstances of the case as well as in law, the Ld. Commissioner of Income Tax (A) has erred in
i) Holding that there is no liability for deduction of tax at source and as the deductee assessee is exempted from tax, there cannot be any liability of interest u/s.1
I.T.A. NOS. 665 & 666/DEL/2011 201(A). The interest cannot be computed on zero principal.
ii) Not following the order of Hon'ble Supreme court in the case of Hindustan Coco Cola Beverages Pvt. Ltd. vs. C.I.T. in (2007) 293 ITR (SC) wherein it is held that no demand visualize u/s. 201(1) should be enforced after the deductor has satisfied the TDS Officer in charge of TDS that taxes have been paid by the deductee assessee. However, this will not alter the liability to charge interest u/s. 201(1A) till the date of payment of taxes by the deductee assessee or the liability for penalty u/s. 201(1A) till the date of payment of taxes by the deductee assessee or the liability for penalty u/s. 271(1)(c) of the I.T. Act.
iii) Though the revenue effect is ` 1,42,150/- only which is less than the monetary limit prescribed by the Board, since the legal issue is involved in this case, appeal to the ITAT is being filed in view of the clause
(a) of para 8 of the Board Instruction No. 05/2008 dated 15.5.2008.
The appellant craves leave to add, alter or amend any of the grounds of appeal at the time of hearing."
3. The grounds raised in the I.T.A. No. 666/Del/2011 read as under:-
"On the facts and in the circumstances of the case as well as in law, the Ld. Commissioner of Income Tax (A) has erred in 2 I.T.A. NOS. 665 & 666/DEL/2011
i) Holding that there is no liability for deduction of tax at source and as the deductee assessee is exempted from tax, there cannot be any liability of interest u/s.
201(A). The interest cannot be computed on zero principal.
ii) Not following the order of Hon'ble Supreme court in the case of Hindustan Coco Cola Beverages Pvt. Ltd. vs. C.I.T. in (2007) 293 ITR (SC) wherein it is held that no demand visualize u/s. 201(1) should be enforced after the deductor has satisfied the TDS Officer in charge of TDS that taxes have been paid by the deductee assessee. However, this will not alter the liability to charge interest u/s. 201(1A) till the date of payment of taxes by the deductee assessee or the liability for penalty u/s. 201(1A) till the date of payment of taxes by the deductee assessee or the liability for penalty u/s. 271(1)(c) of the I.T. Act.
iii) Though the revenue effect is ` 1,42,150/- only which is less than the monetary limit prescribed by the Board, since the legal issue is involved in this case, appeal to the ITAT is being filed in view of the clause
(a) of para 8 of the Board Instruction No. 05/2008 dated 15.5.2008.
The appellant craves leave to add, alter or amend any of the grounds of appeal at the time of hearing."
4. At the threshold, we note that tax effect in these cases are less than ` 3 lacs fixed by the CBDT for filing appeal before the tribunal. As per 3 I.T.A. NOS. 665 & 666/DEL/2011 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 2nd August, 2010.
(ii) C.I.T. vs. Delhi Race Club in ITA No. 128/2008, order dated 3rd March, 2011.
4.1 I further find that clause (a) of para 8 of the Board instruction No. 5/ 2008 dated 15.5.2008 provides the following:
"8. Adverse judgements relating to the following should be contested irrespective of the tax effect.
(a) Where the Constitutional validity of the provisions of an Act or Rule are under challenge.
(b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra virus.
(c) Where Revenue Audit objection in the case has been accepted by the Department."
4.2 A reading of the above signifies that ground no. (iii) taken in Revenue appeals are not sustainable.
4I.T.A. NOS. 665 & 666/DEL/2011
5. In the present cases, admittedly the tax is below ` 3 lakhs. Hence, the appeals are in contravention of the aforesaid CBDT Circular/Instruction. Hence, the same are liable to be dismissed.
Accordingly, these appeals by the revenue stand dismissed for tax effect.
6. In the result, both the Revenue appeals stand dismissed.
Order pronounced in the Open Court on 26/7/2012.
Sd/-
[SHAMIM YAHYA] ACCOUNTANT MEMBER Date 26/7/2012 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 5