ITO 8(3)(4), MUMBAI V. VIDYUT & CO, MUMBAI

ITA 1369/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75595 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 19-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 15-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B P K PANDA
• Keywords: Sale consideration of property below Jantri Value; Tax effect
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 1369/MUM/2011 (ASSESSMENT YEAR: 2006-07) INCOME TAX OFFICER - 8(3)(4) M/S. VIDUT & COMPANY ROOM NO. 202, 2ND FLOOR 1/13, JAYKAR SMRITI, AAREY AAYAKAR BHAVAN, M.K. ROAD VS. COLONY ROAD, GOREGAON (W) MUMBAI 400020 MUMBAI 400062 PAN - AAACV1600L APPELLANT RESPONDENT APPELLANT BY: SHRI B.P.K. PANDA RESPONDENT BY: NONE DATE OF HEARING: 19.02.2014 DATE OF PRONOUNCEMENT: 19.02.2014 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER DATED 25.11.2010 PASSED BY THE CIT(A)-18, MUMBAI AND IT PERTAINS TO A.Y. 2006-07. 2. REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPE AL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY OF RS2,28,133/ - LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(C) BY HOLDING THAT FO R THE PURPOSE OF COMPUTING CAPITAL GAIN ON SALE OF DEPRECIABLE ASSET S, THE PROVISIONS OF SECTION 50C ARE NOT APPLICABLE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY WITHOUT APPREC IATING THE FACT THAT THE ASSESSEE ITSELF IN ITS RETURN OF INCOME HA S COMPUTED SHORT TERM CAPITAL GAIN ARISING ON SALE OF GALA BY TAKING STAMP DUTY VALUATION. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY WITHOUT APPREC IATING THE FACT THAT THE ASSESSEE HAD OFFERED CAPITAL GAINS IN RESP ECT OF ONE GALA ONLY AND ONLY AFTER DETECTION BY THE A.O. IT FILED A REVISED COMPUTATION OF INCOME DECLARING THE SHORT TERM CAPI TAL GAINS IN RESPECT OF ANOTHER GALA. ITA NO. 1369/MUM/2011 M/S. VIDUT & COMPANY 2 3. AT THE TIME OF HEARING, A LETTER ADDRESSED BY TH E ASSESSEE DATED 13 TH FEBRUARY, 2014 WAS PLACED BEFORE THE BENCH STATING THAT THE TAX EFFECT IN THE INSTANT CASE WORKS OUT TO ` 2,28,133/- ONLY AND AS PER CBDT CIRCULAR NO. 3 DATED 09.02.2011 AN APPEAL SHOULD NOT BE PREFERRE D BY REVENUE UNLESS THE TAX EFFECT IS ABOVE ` 3,00,000/- OR THE ISSUE ARISING OUT OF THE ORDER OF THE FIRST APPELLATE AUTHORITY IS EXCEPTIONAL IN NATURE AND IT IS SPECIFICALLY MENTIONED IN THE AUTHORISATION. IN THE ABSENCE OF S HOWING THAT THE CASE FALLS UNDER EXCEPTIONAL CIRCUMSTANCE THE APPEAL FILED BY REVENUE DESERVES TO BE DISMISSED AS UNADMITTED. 4. ON THE OTHER HAND, THE LEARNED D.R. SUBMITTED TH AT THE APPEAL IS DULY AUTHORISED BY THE COMMISSIONER OF INCOME TAX AND HE NCE THE AO WAS JUSTIFIED IN FILING THE APPEAL. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D D.R. AND PERUSED THE RECORD. IN THE LIGHT OF THE CIRCULAR ISSUED BY THE CBDT (SUPRA), WHICH IS BINDING UPON THE REVENUE AUTHORITIES, THIS APPEAL D ESERVES TO BE DISMISSED AS UNADMITTED FOR WANT OF TAX EFFECT AND WE ORDER A CCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH FEBRUARY, 2014. SD/- SD/- (N.K. BILLAIYA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 19 TH FEBRUARY, 2014 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 18, MUMBAI 4. THE CIT 8, MUMBAI CITY 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.