ACIT Circle I, V. Gajender Singh,

ITA 1752/DEL/2007

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0683 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 1999-2000
• Appeal Filed On: 10-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: O P SAPRA
• Keywords: Income from undisclosed sources; Tax effect; Set aside
• Section: 268A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH H DELHI ] BEFORE SHRI A. D. JAIN, JM AND SHRI K. D. RANJAN, AM I. T. A. NO. 1752 (DEL) OF 2007 ASSESSMENT YEAR : 1999-2000. ASSTT. COMMISSIONER OF INCOME-TAX, SHRI GAJENDE R SINGH, C I R C L E : 1, VS. 1 TARU KUNJ , GARH ROAD, M E E R U T. M E E R U T. P A N / G I R NO. AFJ PS 2580 K. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI O. P. SAPRA, A DV.; DEPARTMENT BY : MS. ANUSHA KHURANA, S R. D.R.; O R D E R. PER K. D. RANJAN, AM : THIS APPEAL BY THE REVENUE FOR ASSESSMENT YEAR 199 9-2000 ARISES OUT OF ORDER OF THE LD. CIT (APPEALS), MEERUT. 2. THE GROUND OF APPEAL RAISED BY THE REVENUE IS RE PRODUCED AS UNDER :- ' 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (APPEALS) HAS ERRED IN LAW IN HOLDING THAT THE COST OF LAND AS ON 1/04/1981 SHOULD BE TAKEN @ 350/- PER SQ. YARDS OF INDEXED COST OF A CQUISITION & FOR CALCULATING LONG TERM CAPITAL GAIN OF LAND IN QUESTION, IGNORIN G THE SALE DEED OF THE LAND IN THE CASE OF SHRI P. L. LAMBA, 678, SECTOR : 16-A, F ARIDABAD WHICH WAS NEARBY TO THE LAND OF THE ASSESSEE; 2 I. T. A. NO. 1752 (DEL) OF 2007 2. WHETHER ON THE FACTS AND CIRCUMSTANCES O F THE CASE, THE LD. CIT (APPEALS) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.10 LAKHS AS INCOME FROM UNDISCLOSED SOURCES IGNORING THE FACT THAT BOOKS OF ACCOUNTS RELATING THE TARU KUNJ NURSARY WERE DULY AUDITED BY THE AUDITOR BUT T HE SAME WERE NOT PRODUCED BEFORE THE AO. ASSESSEE COULD NOT DISCHARGE HIS BU RDEN TO PROVE THE AGRICULTURAL / NURSERY INCOME AS DECLARED IN HIS RETURN OF INCOM E; 3. IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE ORDER OF THE LD. CIT (APPEALS) MAY BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER RESTORED. 3. AT THE OUTSET IT HAS BEEN BROUGHT TO THE NOTICE OF THE BENCH BY THE LD AR OF THE ASSESSEE THAT TAX EFFECT IN THIS APPEAL IS LESS THAN RS 2,00 ,000/- AND HENCE THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE IN THIS CASE. ON THE OTHER HAND , THE LD SR. DR SUPPORTED THE ORDER OF ASSESSING OFFICER. 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THE THRO UGH THE MATERIAL ON RECORD. WE HAVE ALSO PERUSED THE PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT AS WELL AS VARIOUS INSTRUCTIONS ISSUED BY CBDT ON THE ASPECT OF FIXING MONETARY LIMITS FOR FILING APPEAL BY THE DEPARTMENT BEFORE THE TRIBUNAL, HIGH COURTS AND HON 'BLE SUPREME COURT. THE LATEST NOTIFICATION OF THE CBDT IS INSTRUCTION NO.5/2008 I N F NO.279/MISC/142/2007-ITJ ISSUED ON 15.5.2008. IN THE CASE BEFORE US THE ASSESSEE HAS FILED COPY OF DEMAND NOTICES AND COMPUTATION OF INCOME, ACCORDING TO WHICH, THE TAX DEMANDED FOR ASSESSMENT YEAR 1999-2000 IS RS.2,26,774/-, WHICH INCLUDES INCOME-TAX DEMAND OF RS.1,16,134/-. THE OTHER DEMAND IS ON ACCOUNT OF INTEREST UNDER SECTIONS 234-A, 234-B AND 234-C OF THE ACT, WHICH IS NOT TO BE INCLUDED FOR THE PURPOSE OF DETERMINATION OF TAX EF FECT, AS PER BOARDS INSTRUCTION NO. 5 OF 2008 DATED 15 TH MAY, 2008 REFERRED TO ABOVE. SINCE THE TAX EFFECT IS RS.1,16,134/-, WHICH IS BELOW RS.2 LAKHS, THE REVENUE IS NOT ENTITLED TO FILE APP EAL BEFORE THIS TRIBUNAL. WE ACCORDINGLY HOLD THAT THE APPEAL IS NOT MAINTAINABLE BECAUSE OF TAX EFFECT BEING LESS THAN RS. 2 LAKHS. DURING THE COURSE OF HEARING, THE REVENUE COULD NOT POINT OUT THAT THE APPEAL FILED WAS COVERED BY THE EXCEPTIONS PROVIDED IN THE INSTRUCTION. ACCORDINGL Y, THIS APPEAL IS DISMISSED AS NOT MAINTAINABLE ON ACCOUNT OF TAX EFFECT BEING LESS THAN RS.2,00,00 0/-. WE ALSO FIND THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PRADEEP KUMAR GUPTA 20 7 CTR 115 (DEL.) DISMISSED THE APPEAL OF THE REVENUE IN VIEW OF BOARD CIRCULAR DATED 24 TH OCTOBER, 2005. 3 I. T. A. NO. 1752 (DEL) OF 2007 5. IN THE RESULT, THE APPEAL IS DISMISSED, AS NOT M AINTAINABLE. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 07 TH JANUARY, 2011. SD/- SD/- [ A. D. JAIN ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07 TH JANUARY, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.