ARUN SAMBHAJI GHOLE, MUMBAI V. DCIT 17(2), MUMBAI

CO 253/MUM/2014

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4329 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 11-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 26-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Assessee Lawyers: S S PHADKAR
• Keywords: Sale consideration of property below Jantri Value; Tax effect
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI A BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO.5595/MUM/2013 (ASSESSMENT YEAR:2009-10) DCIT-17(2), MUMBAI -400 012 APPELLANT VS. SHRI ARUN SAMBHAJI GHOLE 20, WADALA UDYOG BHAVAN, NAIGAON X ROAD, WADALA, MUMBAI 400 031 RESPONDENT & C.O. NO.253/MUM/2014 (ASSESSMENT YEAR:2009-10) SHRI ARUN SAMBHAJI GHOLE 20, WADALA UDYOG BHAVAN, NAIGAON X ROAD, WADALA, MUMBAI 400 031 APPELLANT VS. DCIT-17(2), MUMBAI -400 012 RESPONDENT PAN: AABPG7128A ITA NOS.5595/MUM/13 & C.O. NO.253/MUM/14 A.Y. 09-10 [DCIT VS. SHRI ARUN SAMBHAJI GHOLE] PAGE 2 / BY REVENUE : SHRI VIJAY KUMAR BORA, D.R. / BY ASSESSEE: SHRI S. S. PHADKAR, A.R. /DATE OF HEARING : 09.08.2016 /DATE OF PRONOUNCEMENT : 12.08.2016 ORDER PER BENCH ONE APPEAL IS FILED BY REVENUE AND THE CROSS OBJECT ION FILED BY ASSESSEE ARE ARISING FROM THE ORDER OF COM MISSIONER OF INCOME TAX (APPEALS)-29, MUMBAI, DATED 03.06.2013 F OR A.Y. 2009-10. 2. IN ITA NO.5595/MUM/2013, THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITI ON OF RS.19,54,599/- MADE UNDER SECTION 50C OF THE IT ACT 1961 BY THE AO TOWARDS DIFFERENCE ARISING ON ACCOUN T OF SALE OF COMMERCIAL PROPERTY. 2. THE LD. CIT(A) ERRED IN ACCEPTING THE REPORT OF THE DVO WITHOUT AFFORDING AN OPPORTUNITY TO THE AO TO COMME NT UPON SUCH DISTRICT VALUATION OFFICER REPORT. 2. BEFORE US, AT THE OUTSET, LD. AUTHORIZED REPRESE NTATIVE SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NE EDS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF T HE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12.2015. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT TH E TAX EFFECT IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. ITA NOS.5595/MUM/13 & C.O. NO.253/MUM/14 A.Y. 09-10 [DCIT VS. SHRI ARUN SAMBHAJI GHOLE] PAGE 3 2.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUND OF APPEA L RAISED BY THE REVENUE, WE PRIMA-FACIE FIND THAT THE TAX EFFEC T IN THIS APPEAL IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10.12.20 15 (CIRCULAR NO. 21 OF 2015), NO DEPARTMENT APPEALS AR E TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS. 10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PENDING APPEALS. IN THE PRES ENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT ON THE ADDITION S WHICH ARE IN DISPUTE, THE TAX EFFECT IS LESS THAN RS. 10 LACS AND IN THE ABSENCE OF ANY MATERIAL ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXEMPTIONS SPECIFIED IN CLAUSE (8) OF THE AFORESAID CBDT CIRCULAR, WE ARE OF THE VIEW THAT THE MONETARY LIMI T PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESAID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, IN CASE THERE IS ANY ERROR IN THE COMPUTATION OF THE TAX EFFECT INVOLVED OR IF FOR AN Y REASON, THE AFORESAID CBDT CIRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN TO THE REVENUE TO SEEK REVIVAL OF THE APPEAL. IN SUCH CIRCUMSTANCES, WE DISMISS THE APPEAL OF REVENUE WIT HOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. 3. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ITA NOS.5595/MUM/13 & C.O. NO.253/MUM/14 A.Y. 09-10 [DCIT VS. SHRI ARUN SAMBHAJI GHOLE] PAGE 4 4. WHEN REVENUES APPEAL IS DISMISSED, CROSS OBJEC TION ARISING OUT OF SAME, BECAME INFRUCTUOUS. SO, SAME IS ALSO DISMISSED. 5. IN THE RESULT, APPEAL FILED BY REVENUE AND CROSS OBJECTION FILED BY ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 12 TH DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 12/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. BY ORDER / , / , ,