ITO,Ward-7(1), Kolkata, Kolkata V. M/s. Agarwala Properties Ltd, Kolkata

ITA 1318/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99965 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 12-09-2012
• Court: TRIBUNAL
• Department Lawyers: AMIT BHATTACHARYA
• Assessee Lawyers: VAR SHA JALAN L
• Keywords: Tax effect
• Section: 260A

Judgement Text

ITA NO. 1318/KOL/2012-C-JM T.E M/S. AGARWALA PROPERTIES LTD 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, K OLKATA BEFORE : SHRI M. BALAGANESH, ACCOUNTANT MEMBER, AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO. 1318/KOL/2012 A.Y 2007-08 I.T.O WARD 7(1), KOLKATA VS. M/S. AGAR WALA PROPERTIES LTD PAN: AAECA 922 3G (APPELLANT) (RESPONDENT) FOR THE APPELLANT/DEP ARTMENT: SHRI AMIT BHATTACHARYA, JCIT, SR.DR FOR THE RESPONDENT/ ASSESSEE: MS. VAR SHA JALAN, ADVOCATE, LD.AR DATE OF HEARING: 12-10-2015 DATE OF PRONOUNCEMENT: 30-10-201 5 ORDER SHRI S.S. VISWANETHRA RAVI, JM THIS APPEAL IS FILED BY THE REVENUE HAVING AGGRIEV ED BY THE ORDER DATED 01-06- 2012 PASSED BY THE CIT(APPEALS)-VIII, KOLKATA IN AP PEAL NO.407/CIT(A)- VIII/KOL/09-10 FOR THE ASSESSMENT YEAR 2007-08. 2. IN THIS APPEAL THE REVENUE HAS TAKEN THE FOLLO WING GROUND :- 1) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-VIII, KOLKATA HAS ERRED IN DIRECTING THE AO TO ACCEPT THE RENTAL VALUE OF RS.14,34,678/- AS SHOWN BY THE APPELLANT/A SSESSEE OF THE SAID PROPERTIES AS AGAINST THE ESTIMATED NOTIONAL VALUE OF RS.23,78,688/- DETERMINED BY THE AO DURING THE COURSE OF ASSESSMEN T WHICH IS PERVERSE AND IS TOTALLY UNLAWFUL AND UNJUSTIFIABLE. 2) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A)-VIII, KOLKATA HAS ERRED IN NOT CONSIDERIN G THE TREATMENT OF HOUSE PROPERTY INCOME, IN SPITE OF FULFILLING THE C ONDITIONS OF SECTION 22 OF THE INCOME TAX ACT, 1961. HE HAS ALSO CHOSEN NEITHE R TO DISCUSS THE CASE- LAW/S REFERRED BY THE ASSESSING OFFICER NOR HAS THE ONE RELIED UPON BY THE ASSESSEE, THEREBY, MAKING THE DELETION PERVERSE, UN LAWFUL AND UNJUSTIFIED. 3) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A)-VIII, KOLKATA ERRED IN DIRECTING TO ALLOW SET OFF THE INCOME FROM ITA NO. 1318/KOL/2012-C-JM T.E M/S. AGARWALA PROPERTIES LTD 2 HOUSE PROPERTY WITH THE LOSS FROM THE BUSINESS THER EBY, MAKING THIS ORDER UNLAWFUL AND UNJUSTIFIED. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS. 3 LAKHS AND FILE D COMPUTATION OF TAX EFFECT AND SERVED A COPY OF THE SAME TO LD.DR. THE LD.DR APPEARING ON BEHALF OF THE REVENUE CONCEDED THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS. 3 L AKHS. THE CENTRAL BOARD OF DIRECT TAXES (CBDT) IN THEIR CIRCULAR CBDT INSTRUCTION NO. 3/2011 (F.NO. 279/MISE/142/2007-ITJ) DATED 9.2.2011 HAS ENHANCED THE LIMITS FOR FILING OF APPEAL BEFORE THE TRIBUNAL TO RS. 3 LAKHS. THIS APPEAL B Y THE REVENUE HAS BEEN FILED BEFORE THE TRIBUNAL ON 12-09-2012 AND, THEREFORE, THE MONE TARY LIMITS FOR FILING APPEAL BEFORE THE TRIBUNAL HAS TO BE ADHERED. 4. ADMITTEDLY, THE TAX PAYABLE IN RESPECT OF GROUND S OF APPEAL BY THE DEPARTMENT IS LESS THAN RS. 3 LAKHS AND AS PER REVISED INSTRUC TION OF THE CBDT NO.3 DATED 9.2.2011 WHEREIN THE CBDT HAS REVISED THE FILING LIMITS OF A PPEAL(S) FILED BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT AS UNDER:- BEFORE THE INCOME TAX APPELLATE TRIBUNAL : RS. 3 LAKHS APPEALS U/S. 260A OF THE I.T ACT 1961 BEFORE THE HONBLE HIGH COURT : RS. 10 LAKHS, AND BEFORE THE HONBLE SUPREME COURT : RS. 25 LAKHS SINCE IN THE PRESENT CASE THE ABOVE REVISED INSTRUC TION IS WELL APPLICABLE, IN OUR OPINION THE REVENUES APPEAL IS NOT MAINTAINABLE IN VIEW OF THE SAID CIRCULAR OF THE CBDT. 5. IT IS A SETTLED LAW THAT THE CIRCULARS ISSUED BY THE CBDT ARE BINDING ON THE REVENUE. THIS POSITION WAS CONFIRMED BY THE HONBLE APEX COURT IN THE CASE OF COMMISSIONER OF CUSTOMS VS. INDIAN OIL CORPORATION REPORTED IN 267 ITR 272(SC), WHEREIN THEIR LORDSHIPS EXAMINED THE EARLIER DECISI ONS OF THE HONBLE APEX COURT WITH REGARD TO BINDING NATURE OF THE CIRCULAR AND LAID D OWN THAT WHEN A CIRCULAR ISSUED BY ITA NO. 1318/KOL/2012-C-JM T.E M/S. AGARWALA PROPERTIES LTD 3 THE BOARD REMAINS IN OPERATION THEN THE REVENUE IS BOUND BY IT AND CANNOT BE ALLOWED TO PLEAD THAT IT IS NOT VALID OR THAT IT IS CONTRA RY TO THE TERMS OF THE STATUTE. THIS APPEAL UNDER CONSIDERATION HAS CERTAINLY BEEN FILED CONTR ARY TO THE CIRCULAR ISSUED BY THE CBDT INSTRUCTION NO.3 DATED 9-2-2011. 6. IN VIEW OF THE ABOVE, WE HOLD THAT THE PRESENT A PPEAL FILED BY THE DEPARTMENT, AGAINST THE IMPINGED ORDER OF THE LD.CIT(A) IS CONT RARY TO THE POLICY DECISION OF THE DEPARTMENT AND AS SUCH THE APPEAL FILED BY THE DEPA RTMENT IS DISMISSED IN LIMINE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 30 / 10/2015 1.. THE APPELLANT/DEPARTMENT: I.T.O WARD 7(1) P-7 CHOWRINGHEE SQ R.NO.21, 5 TH FL., KOL-69. 2 THE RESPONDENT/ASSESSEE-M/S. AGARWALA PROPERTIES LTD 370 UPPER CHITPUR RD, KOL-6 3 4.. /THE CIT, / THE CIT(A) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS SD/- ( M. BALAGANESH, ACCOUNTANT MEMBER ) SD/- ( S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ) DATE 30 /10/2015 COPY OF THE ORDER FORWARDED TO: