COMMISSIONER OF INCOME TAX,RAIPUR V. SMT.MUSKAN ROHRA

TAXC/15/2009

AI Insights

The case involves the Commissioner of Income Tax, Raipur as the appellant and Smt. Muskan Rohra as the respondent. The core issue was whether the Income Tax Appellate Tribunal was justified in law in quashing the order passed under Section 263 of the Income Tax Act, which had deemed the initial assessment order as erroneous and prejudicial to the interest of the revenue. The original assessment under Section 143(3) had accepted the respondent's claim for exemption under Section 10(38) for long-term capital gains without proper inquiry, which was later contested by the CIT under Section 263. The Tribunal found that the CIT was not justified in holding that the AO allowed the exemption without making proper enquiries, thus reversing the CIT's order.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 728346 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 27-01-2010
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: NEELABH DUBEY
• Assessee Lawyers: RAJEEV SHRIVASTAVA
• Keywords: Assessment Order; Erroneous and Prejudicial; Exemption; Income Tax; Long Term Capital Gain; Monetary limit; Tax effect; Tax effect
• Section: 143(3); 263; 268A; 260A; 10(38)

Judgement Text

"HIGH COURT OF CHHATTiSGARH AT BILASPUR D.B. HON'BLE SHRI DHiRENDRA MISHRA, & HON'BLE SHRI R.N. CHANDRAKAR, JJ TaxCaseNo.15 of 2009 Commissioner of Income Tax, Raipur. (Revenue) Versus lAssessee) Smt. Muskan Rohra W/o Santosh Rohra, Raipur Road, Dhamtari. Present: Shri Rajeev Shrivastava, Standing Counsel for the appsllant. Shri Neeiabh Dubey, counsel for the respondent. ORAL ORDER (Passed on 27\"' January, 2010) PerDhirendra Mishra, J The instant appeai preferred by the appellant/revenue under Section 260A of the Income Tax Act, 1961 (in short \"the Act\") against the order of the Income Tax Appellate Tribunal, Bilaspur Bench, Camp at Raipur (in short \"Tribunal\") has been admitted on the following substantial question of law: \"Whether in the facts and circumstances of ffiie case, the Income Tax Appellate Tsibunat was jusiified in law, in cjuashing the orefer passed under Secffon 263 and in holding that the assessmentorder was not envneous and prejudicial to the interest of revenue though proper and acfeqiyate inquiry was not made by the Assessing Officer before passing assessment order?\" 2. Briefiy stated, facts of the case, as projected in the impugned order, are that assessment was compieted under Section 143(3) of the Act on 23.1.2007 on a total income of Rs.90,980/- against the returned income of Rs.81,980/- by making routine disailowances. Later on, it was discovered by the Assessing Officer (in short \"AO\") that the assessee had shown an income of Rs.9,84,242/- under the head of Long Term Capita! Gain and claimed exemption under Section 10(38) ofthe Act. 3. Learned Commissioner, Income Tax (in short \"CIT\") in his order under Section 263 of the Act, held the said assessment erroneous and prejudicial to the interest of the revenue as the AO accepted the claim •P;:—;-1!; ^••\"---S;-?- ——^>-B ifflSsiSS-y.-aff??,: 2- of the assessee facts. proper verification and investigation of the 4. The assessee aggrieved by the order of the CIT, preferred appeal before the Tribunal. Learned Tribunai aliowed the appeal by the irnpugned order with a finding that learned CIT was not justified in hoiding that the AO aiiowed exemption under Section 10(38) of the Act without maklng proper enquiries. and further heid that the order of the AO cannot be heid to be erroneous or prejudiciat to the interest of the revenue and the present case was not fit for invoking provisions of Sectlon 263 of the Act. Shri Rajeev Shrivastava, iearned counsei for the appeilant/'revenue, on instructions from the department, before entering into merits of the case, fairly submits that even if the order passed by teamed CIT under Section 263 is upheid, tax effect involved in this appeal is less than the minimum monetary limit of Rs.4 lac as fixed by the Central Board of Direct Taxes vide its instructions No.5/08 dated 15.5.2008, according to which for preferring appeal before the High Court, the minimum tax effect has been fixed at Rs.4 tacs. 6. Heard tearned counsel for the parties. 7. The Central Board of Direct Taxes (in short \"the Board\") issues instructions to the income-tax authorities by way of issuing circulars from time to time. The Board, vide Instruction No.5/08 dated 15.5.2008, in supersession of the earlier instructions, instructed the income-tax authorities regarding the monetary limits and conditions for filing departmental appeals before the Appeliate Tribunals, High Courts and Supreme Court. Instruction No.3 deals with the monetary limits, Instruction No.4 detines the tax effect, whereas instructions No. 8 & S mention ihe conditions, in which adverse judgments are to be contesteci irrespective of the tax effect. As per above instructions, for niing appeal before ihe High Court, the minimum mpnetary limit has been fixed at Rs.4 lacs. Thus, in view of the iatest Instruction dated 15.5.2008 and Section 268A of the Act, we do not deem it necessary to go into tne rnerits ot the case. Accordingty, tne appeai is dismissed tor naving negiigible faxCTre&t———, Sd/- DhirendraMishr. Jud&e Sdl- R.N. Chandrakar Judge ^ _1^«*».. "