ACIT Cir.-2, Nashik V. Shri Shankar Anand Sawant, Nashik

ITA 1246/PUN/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49911 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 29-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY A AVACHAT
• Assessee Lawyers: SANDEEP PRADHAN
• Keywords: Business income; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NOS. 1246 TO 1248/PN/2009 (ASSTT. YEAR : 2003-04 TO 2005-06) ASSTT. COMMISSIONER OF INCOME TAX , ... AP PELLANT CIRCLE-2, NASHIK, V. SHRI. SHANKAR ANAND SAWANT , RESPONDENT PLOT NO. 19, GARDEN HOME SOCIETY LOKMANYA NAGAR, GANGAPUR ROAD, NASHIK PAN ACCPS6327E APPELLANT BY : SHRI ABHAY A. AVACHAT RESPONDENT BY : SHRI SANDEEP PRADHAN ORDER PER I.C. SUDHIR, JM IN THESE APPEALS, THE REVENUE HAS QUESTIONED FIRST APPELLATE ORDER WHEREBY LD CIT(A) HAS DELETED THE ADDITION MADE TO THE BUSINESS INCOME BY THE A.O ON ACCOUNT OF THE INCOME IN THE GUISE OF AGRICULTURAL INCOME. 2. AT THE OUTSET OF HEARING, THE LD. A.R RAISED A P RELIMINARY OBJECTION AGAINST THE VERY MAINTAINABILITY OF THE PRESENT AP PEALS AS THE SAME HAVE BEEN PREFERRED BY THE REVENUE IN VIOLATION OF CBDT INSTRUCTION NO. 5/2007 DATED 16.7.2007 READ WITH EARLIER INSTRUCTIO NS. HE SUBMITTED THAT AS PER THESE INSTRUCTIONS, THE REVENUE IS REQUIRED NOT TO PREFER APPEAL BEFORE THE TRIBUNAL IF THE TAX EFFECT OF THE PROPOS ED APPEAL IS BELOW RS. 2 LAKH. WITH THE ASSISTANCE OF STATEMENTS MADE IN PA GE NUMBERS 1 TO 3 OF THE PAPER BOOK, THE LD. A.R. POINTED OUT THAT TAX EFFECT OF THE APPEAL FOR THE A.Y. 2003-04 IS RS. 1,73,013/-, IN A.Y. 2004-05 RS. 1,90,031/- AND IN A.Y. 2005-06 RS. 1,57,030/- ONLY. HE SUBMITTED FUR THER THAT EVEN WITHOUT PREJUDICE TO THE PRELIMINARY OBJECTION RAIS ED, THE ADDITION OF ITA . NOS.1246 TO 12488/PN/2009 SHRI. SHANKAR ANAND SAWANT, A.Y 2003-04 TO 2005-06 PAGE OF 3 2 AGRICULTURAL INCOME BEING TREATED AS BUSINESS INCOM E IS NOT WARRANTED IN EACH A.Y. UNDER CONSIDERATION AS THE ISSUE IS COVER ED IN ASSESSEES OWN CASE FOR A.YS. 2001-02 AND 2002-03 WHEREIN THE TRIB UNAL PUNE BENCH HAS DECIDED THE MATTER IN ASSESSEES FAVOUR VIDE ORDER DATED 29 TH FEBRUARY 2008 IN ITA NO. 851/PN/2005 (A.Y. 2001-02) AND VID E ORDER DATED 29 TH FEBRUARY 2008 IN ITA NO. 1555/PN/2005 (A.Y. 2002-03 ). 3. THE LD. D.R. DID NOT DISPUTE THE ABOVE SUBMISSIO NS OF THE LD. A.R., HOWEVER, HE PLACED RELIANCE ON THE ASSESSMENT ORDER IN SUPPORT OF THE APPEALS. 4. IN VIEW OF THE ABOVE SUBMISSIONS, WE FIND THAT T HERE IS NO DISPUTE THAT THE TAX EFFECT OF EACH OF THE APPEALS PREFERRE D BY THE REVENUE BEFORE THE TRIBUNAL UNDER CONSIDERATION IS BELOW RS. 2,00, 000/-, HENCE ADMITTEDLY, THESE APPEALS HAVE BEEN PREFERRED BY TH E REVENUE IN VIOLATION OF CBDT INSTRUCTION NO. 5/2007 DATED 16.7 .2007 READ WITH EARLIER INSTRUCTION WHEREBY REVENUE IS NOT REQUIRE D TO PREFER APPEAL BEFORE THE TRIBUNAL WHEREIN TAX EFFECT FOR THE A.Y. IS BELOW RS. 2,00,000/- . VIDE CLAUSE NO. 5 OF THE SAID INSTRUCTION DATED 16.7.2007, IT HAS BEEN MADE CLEAR THAT THE A.O SHALL CALCULATE THE TAX EFF ECT SEPARATELY FOR EVERY A.Y. IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE A.Y., APPEAL SHALL BE FILED IN RESPECT OF SUCH A.YS. OR Y EARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUE EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3 (IN CASE OF APPEAL BEFORE THE T RIBUNAL, IT IS RS. 2 LAKH). NO APPEAL SHALL BE FILED IN RESPECT OF ANY A.Y OR Y EARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA NO. 3, CLARIFIED BY THE CBDT. SINCE PRESENT APPEALS HAVE BEEN PREFERRE D IN VIOLATION OF THE SAID CBDT INSTRUCTION DATED 16.7.2007, THESE ARE NO T MAINTAINABLE. ITA . NOS.1246 TO 12488/PN/2009 SHRI. SHANKAR ANAND SAWANT, A.Y 2003-04 TO 2005-06 PAGE OF 3 3 5. CONSEQUENTLY, APPEALS ARE DISMISSED AS NOT MAINT AINABLE. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30TH JUNE 2011. SD/- SD/- ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE, DATED THE 30TH JUNE, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-I, NASHIK 4. THE CIT(A)- II, NASHIK 5. THE D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE