Commissioner of Income Tax vs Vishwendra B. Panwar

This Notice of Motion has been taken out by the Applicant for condoning the delay of 1178 days in filing the appeal.

The Notice of Motion indicate that the delay is of 740 days. Assessing Officer has filed an affidavit dated 3.8.2015 wherein he has indicated that the delay is 1178 days in filing the appeal. The reason for the delay was that the appellant has filed an appeal before the Hon''ble Gujarat High Court, as the order being challenged was passed by the Income Tax Appellate Tribunal at Ahmedabad. For the reasons indicated in the affidavit in support of the Notice of Motion, we condone the delay of 1178 days in filing the appeal. The Notice of motion is allowed in above terms.

At the request of the learned Counsel for the Appellant, the appeal itself is taken up for admission.

The challenge in the present appeal is to the order of tribunal dated 18th February 2009 imposing a penalty upon the appellant.

Mr. Tejveer Singh learned counsel for the revenue urges the following question of law for our consideration :

"(a) Whether in the facts and circumstances of the case and in law, the Tribunal is right in deleting the penalty levied u/s.271D of Rs. 4,42,000/- even after the establishment of the fact that assessee has violated provisions of section 269SS?

(b) Whether in the facts and circumstances of the case and in law, the Tribunal is right in deleting the penalty levied u/s. 271D of Rs. 4,42,000/- even when it was established that this amount was credited to the books of accounts of assessee in violation of section 269SS?

(c) Whether in the facts and circumstances of the case and in law, the Tribunal is right in deleting the penalty u/s.271D on the pretext that similar amounts were added in the case of Shri B.S. Panwar on substantive basis even though in the case of Shri B.S. Panwar, the Appellate Tribunal has already deleted such additions on the plea that amounts were credited in the books of accounts of Shri Vishwendra B. Panwar?"

The present appeal has been filed challenging the order of the Tribunal dated 18th February, 2009, deleting the penalty of Rs. 4,42,000/-. The assessing officer one Mr. Gupta has also filed an affidavit dated 3.8.2015 wherein he has indicated tax effect in the present appeal is Rs. 4,42,000/-.

The Central Board for Direct Tax (CBDT) has issued Instruction No. 5 of 2014 and in line with its earlier Instruction No. 3 of 2011 directing the Revenue not to file appeals to the High Court from the order of the Tribunal when the tax effect is less than Rs. 10 lakhs. This Court in Commissioner of Income Tax Vs. Smt. Vijaya V. Kavekar L/H of Late Vijaykumar B. Kavekar, , dismissed the appeal having tax effect of less than Rs. 10 lakhs in terms of Instruction No. 3 of 2011. This on the ground that the instructions of CBDT in terms of Section 268A of the Act will ever apply to pending appeals. Thus, following the above decision, we are not inclined to entertain this appeal. Moreover, the Revenue has not been able to point out that the appeal would otherwise stand covered by the exclusion clause of Instruction No. 5 of 2014 or would be otherwise covered by the Apex Court decision in Commissionar of Income Tax Central-III Vs. Surya Herbal Ltd., .

In the above view, as the present appeal has a tax effect of only Rs. 4,42,000/-, we see no reason to entertain the proposed questions of law.

Accordingly, appeal dismissed. No order as to costs.