ACIT, Kota V. SHRI MOHAMMAD MIYAN, Kota

ITA 171/JPR/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2153 (ITAT-JAIPUR)
• Duration Of Justice: 5 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 27-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAILENDRA SHARMAADDL CIT ASS
• Assessee Lawyers: PM M VIHYKFKHZ IZRFKHZ
• Keywords: Tax effect

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH DQY HKKJR ] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 171/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, KOTA. CUKE VS. MOHAMMAD MIYAN, PROP.- M/S MASOOM CONSTRUCTION CO., 5-B-18, VIGYAN NAGAR, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABYPM 2874 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI SHAILENDRA SHARMA(ADDL.CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI AAKASH JAIN (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/04/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 25/04/2017 VKNS'K@ ORDER PER: KUL BHARAT, J.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 29/12/2011 PASSED BY THE LD. CIT(A), KOTA FOR THE A. Y. 2005-06, WHEREIN THE REVENUE HAS TAKEN SOLE EFFECTIVE GROUND, WHICH I S AGAINST DELETING THE CAPITAL GAIN OF RS. 44,84,675/- ASSESSED IN THE ASS ESSMENT YEAR 2005-06. 2. THE LD. SR.DR HAS DRAWN OUR ATTENTION TOWARDS DECIS ION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. K.SRINI VASAN ORDER DATED 05/11/1971 REGARDING SURCHARGE IS PART OF TAX. ITA 171/JP/2012_ ACIT VS MOHAMMAD MIYAN 2 3. IT IS THE CONTENTION OF THE LD. AR OF THE ASSESS EE THAT EVEN IF SURCHARGE IS INCLUDED THEN ALSO THE TAX EFFECT IS L ESSER THAN THE PRESCRIBED LIMIT. THE LD. COUNSEL HAS PLACED ON RECORD THE COMP UTATION OF TAX, WHICH READS AS UNDER:- PARTICULARS AMOUNT (IN RS.) ADDITIONS I. ON ACCOUNT OF LTCG 44,84,675/- TOTAL ADDITIONS 44,84,675/- TAX ON TOTAL ADDITIONS @ 20% 8,96,935/- TOTAL TAX 8,96,935/- THE LD. COUNSEL HAS ALSO PLACED ON RECORD THE COMPUT ATION OF TAX AFTER ADDING SURCHARGE @ 10%, WHICH READS AS UNDER:- PARTICULARS AMOUNT (IN RS.) ADDITIONS I. ON ACCOUNT OF LTCG 44,84,675/- TOTAL ADDITIONS 44,84,675/- TAX ON TOTAL ADDITIONS @ 20% 8,96,935/- SURCHARGE @ 10% 89,694/- 9,86,629/- EC & SHEC @ 3% 19,733/- TOTAL TAX 10,06,362/- IT IS OBSERVED THAT THE DEMAND/ TAX EFFECT IN THE R EVENUES APPEAL IS LESS THAN RS. 10 LACS. UNDER THE POWERS VESTED BY SEC. 26 8A(1) OF THE I T ACT, CBDT HAS RECENTLY ISSUED CIRCULAR NO.21 OF 2015 DAT ED 10.12.2015(F NO. 279/MISC. 142/2007-ITJ(PT) INSTRUC TING THE AUTHORITIES BELOW THAT THE DEPARTMENTAL APPEAL SHOU LD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DOES NOT EXCEED ITA 171/JP/2012_ ACIT VS MOHAMMAD MIYAN 3 LESS THAN RS.10 LACS. THE CIRCULAR IS SPECIFICALLY M ENTIONED TO BE APPLICABLE FOR ALL PENDING APPEALS. 4. SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIREC TED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE TH E DEMAND/TAX EFFECT IS LESS THAN 10 LACS SHOULD BE EITHER WITHDRA WN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES. 5. THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEPTIO NS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DISP UTE IN THIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY CB DT FOR THE APPEAL THE SAME IS NOT MAINTAINABLE IN VIEW OF FORE GOINGS. 6. THE REVENUE HAS NOT GIVEN ANY OTHER COMPUTATION, THEREFORE IN VIEW OF THIS COMPUTATION, WE DISMISS THE APPEAL OF THE RE VENUE AS NOT MAINTAINABLE AS EVEN IF THE SURCHARGE IS INCLUDED T HEN ALSO THE TAX EFFECT REMAINS LESSER THAN THE PRESCRIBED LIMIT I.E. RS.9, 86,629/-. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/04/2017. SD/- SD/- HKKXPAN DQY HKKJR (BHAGCHAND) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 TH APRIL, 2017 *RANJAN ITA 171/JP/2012_ ACIT VS MOHAMMAD MIYAN 4 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ACIT, CIRCLE-1, KOTA. 2. IZR;FKHZ @ THE RESPONDENT- SHRI MOHAMMAD MIYAN, KOTA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 171/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR