ITO, Ward-16(2), Hyd, Hyderabad V. Potluri Hire Purchase & Finance Pvt.Ltd., Hyd, Hyderabad

ITA 1056/HYD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98823 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 12-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KURMI NAIDU
• Keywords: Business income; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO.1056/HYD/2015 : ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER WARD 16(2) HYDERABAD V/S M/S. POTLURI HIRE PURCHASE & FINANCE PVT. LTD., HYDERABAD (PAN - AABCP 2521 P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.KURMI NAIDU DR RESPONDENT BY : NONE DATE OF HEARING 18 .1 2 .2015 DATE OF PRONOUNCEMENT 18.12.2015 O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER : THIS APPEAL IS FILED BY THE REVENUE. AT THE OUTSET, IT IS OBSERVED THAT TAX EFFECT IN THIS APPEAL IS LESS THAN RS. 10 LAKHS. VIDE CIRCULAR NO.21/2015 DATED 10 TH DECEMBER, 2015, BEARING F.NO.279/- MISC.142/2007-ITI(PT), THE CBDT, FUNCTIONING UNDER THE MINISTRY OF FINANCE, WITH A VIEW TO REDUCE UNNECESSARY LITIGATION O N THEIR PART, HAS ISSUED A CIRCULAR, WHEREIN THEY HAVE REVISED THE MON ETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE THE I NCOME TAX APPELLATE TRIBUNAL, HIGH COURTS AND SUPREME COURT. I NSOFAR AS THE TRIBUNAL IS CONCERNED, THE MONETARY LIMIT SPECIFIED IS R S.10 LAKHS. CBDT SPECIFIED THAT WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMIT SPECIFIED THEREIN, THE CONCERNED AUTHOR ITY HAS TO WITHDRAW ITS APPEAL OR IT NEED NOT PRESS THE SAME. IT IS FURTHER SPECIFIED THAT THE TAX EFFECT INDICATED THEREIN IS APPLI CABLE TO ALL PENDING APPEALS, THOUGH THEY ARE FILED BY THE REVENU E PRIOR TO THE ISSUANCE OF THE SAID CIRCULAR. IT WAS ALSO CLARIFIED THAT THE ASSESSING OFFICER HAS TO CALCULATE THE TAX EFFECT SEPARATELY FOR E VERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUE(S) IN THE CASE OF EV ERY ASSESSEE. ITA NO.1056/HYD/2015 M/S. POTLURI HIRE PURCHASE & FINANCE PVT. LTD., HYDERABAD 2 IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUE ARISES IN MORE THAN ONE YEAR(S), APPEAL(S) CAN BE FILED IN RESPECT OF SUCH ASSE SSMENT YEAR(S) IN WHICH TAX EFFECT IN RESPECT OF THE DISPUTED I SSUE EXCEEDS THE MONETARY LIMIT SPECIFIED, IN OTHER WORDS, IF THERE ARE A NUMBER OF YEARS, IF THE TAX EFFECT IS LESS THAN THE SPECIFIED LIMIT IN ONE YEAR, APPEAL CANNOT BE FILED OR THE SAME HAS TO BE WITHDRAW N FOR THAT YEAR, FOR WANT OF TAX EFFECT. HOWEVER, AN EXCEPTION IS MADE TO THIS DIRECTION WITH REGARD TO A COMBINED ORDER PASSED BY THE FIRST APP ELLATE AUTHORITY. THAT IS, IF IN ONE OF THE YEARS THE TAX E FFECT IS MORE THAN RS.10 LAKHS AND THE REVENUE DECIDES TO FILE AN APPEAL, IN RESPECT OF OTHER YEARS COVERED BY THE SAID ORDER ALSO, REVENUE IS E LIGIBLE TO FILE APPEAL, EVEN THOUGH THE TAX EFFECT IN EACH OF THOSE YE ARS IS LESS THAN RS.10 LAKHS. IT WAS ALSO CLARIFIED THAT MERELY BECAUSE TH E APPEAL IS DISMISSED FOR WANT OF TAX EFFECT, IT DOES NOT COME IN THE WAY OF THE DEPARTMENT IN FILING APPEAL FOR OTHER YEARS(S), AND I T DOES NOT MEAN THAT THE DEPARTMENT HAS ACQUIESCED THE ISSUE. 2. THE ABOVE CIRCULAR WAS SPECIFICALLY MADE APPLICABLE TO ALL PENDING APPEALS. IN THE PRESENT CASE, THE DISPUTE RELA TES TO THE HEAD UNDER WHICH THE CONSIDERATION RECEIVED BY THE ASSESSEE ON SALE OF SHARES HAS TO BE ASSESSED. WHILE THE ASSESSEE HAS ADMITTED THE SAME UNDER THE HEAD CAPITAL GAINS, DISCLOSING LONG TERM CAP ITAL GAINS OF RS.26,40,640, THE ASSESSING OFFICER, BRINGING TO TAX THE SAME UDNER THE HEAD BUSINESS INCOME DETERMINED THE TAXABLE INC OME OF THE ASSESSEE AT RS.28,59,465. BY THE IMPUGNED ORDER, THE C IT(A) THAT THE ASSESSEE CANNOT BE TREATED AS A TRADER IN SHARES, AND THE CONSIDERATION RECEIVED ON THE SALE OF SHARES HAS TO BE ASSE SSED AS CAPITAL GAINS ONLY. ADMITTEDLY, THE TAX EFFECT INVOLV ED IN THIS APPEAL IS LESS THAN RS.10 LAKHS. ITA NO.1056/HYD/2015 M/S. POTLURI HIRE PURCHASE & FINANCE PVT. LTD., HYDERABAD 3 3. THE LEGISLATURE IN ITS WISDOM HAS INTRODUCED S.268A OF THE INCOME TAX ACT, 1961, WHEREBY THE BOARD IS EMPOWERED T O ISSUE ORDERS/INSTRUCTIONS/DIRECTIONS TO THE INCOME-TAX AUTHORI TIES, FIXING THE MONETARY LIMITS FOR THE PURPOSE OF REGULATING THE FIL ING OF APPEALS. IN THE LIGHT OF THE CIRCULAR DATED 10.12.2015, ISSUED BY T HE CBDT IN EXERCISE OF THE POWERS CONFERRED IN IT BY SUBSECTION (1) O F S.268A, WE ARE OF THE VIEW THAT THE APPEALS FILED HEREIN SHOULD NOT HAVE BEEN PRESSED BY THE REVENUE. THE LEARNED DEPARTMENTAL REPR ESENTATIVE FAIRLY ADMITTED THAT THE REVENUE EFFECT IN THIS APPEA L IS LESS THAN THE LIMIT PRESCRIBED IN PARA-3 OF THE ABOVE CIRCULAR ISSUED B Y THE CBDT. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, WE DISMISS TH E APPEAL OF THE REVENUE AS WITHDRAWN/NOT PRESSED, AS PRONOUNCED I N THE OPEN COURT. SD/- SD/- (D.MANMOHAN) (INTURI RAMA RAO) VICE PRESIDENT ACCOUNT ANT MEMBER DT/- 18 TH DECEMBER, 2015 COPY FORWARDED TO: 1. M/S. POTLURI HIRE PURCHASE & FINANCE PVT. LTD., FLAT NO.416, NILGIRI, ADITYA ENCLAVE, AMEERPET, HYDERABAD. 2. INCOME TAX OFFICER WARD 16(2), HYDERABAD 3. 4. COMMISSIONER OF INCOME-TAX(APPEALS) 4, HYDERABAD PR. COMMISSIONER OF INCOME-TAX 4, HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD TNMM