ITO, New Delhi V. M/s. Mahavir Irrigation P. Ltd., New Delhi

ITA 1957/DEL/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6394 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 09-03-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 03-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1957/DEL/2014 ASSESSMENT YEAR: 2003-04 INCOME TAX OFFICER, VS. M/S MAHAVIR IRRIGATION P LTD. LTDWARD 6(1), 1801, NIRMAL TOWER, 26, NEW DELHI BARAKHAMBA ROAD, NEW DELHI ROOM NO. 312, CR BUILDING, (PAN: AAACM1073E) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. T. VASANTHAN, SR. DR RESPONDENT BY : NONE DATE OF HEARING : 09-3-2016 DATE OF ORDER : 09-3-2016 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 8.1.2014 OF LD.CIT(A)-IX, NEW DELHI PERTAINING TO A SSESSMENT YEAR 2003-04 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CJT(A) ERRED IN DELETING THE DISALLOWANCE OF LONG T ERM CAPITAL LOSS OF RS. 4,99,058/- ON THE SALE OF SHARES OF M/S ABC COMMERCIAL LTD. MADE BY THE A.O AS NO DETAILS REGARDING M/S ABC CO MMERCIAL LTD. WERE FURNISHED, ON THE GROUND THAT THE BALANCE SHEE T OF ABC COMMERCIAL LTD. IS AVAILABLE IN PUBLIC DOMAIN WITHO UT APPRECIATING THE FACT THAT THE ONUS OF ESTABLISHING THE GENUINEN ESS OF THE TRANSACTION WAS WITH THE ASSESSEE WHICH IT FAILED T O DISCHARGE? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE & IN LAW, THE LD. CJT(A) ERRED IN DELETING THE DISALLOWANCE O F LONG TERM CAPITAL LOSS OF RS.4,99,058/- ON THE SALE OF SHARES OF M/S ABC ITA NO. 1957/DEL/2014 2 COMMERCIAL LTD. ON THE GROUND THAT THE BALANCE SHEE T OF ABC COMMERCIAL LTD. IS AVAILABLE IN PUBLIC DOMAIN WHERE AS THE ABOVE INFORMATION WAS NOT AVAILABLE IN PUBLIC DOMAIN? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE & IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF LONG TERM CAPITAL GAIN OF RS.21,86,431/- ON SALE OF SHARES OF M/S MAHAVIR ALU MINUM LTD. WITHOUT APPRECIATING THE VALUATION OF SHARES MADE B Y THE A.O ? 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE & IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF LONG TERM CAPITAL GAIN OF RS.21,86,431/- ON SALE OF SHARES OF M/S MAHAVIR ALU MINUM LTD. WITHOUT APPRECIATING THE FACT THAT EVEN AS PER THE ASSESSEE'S OWN SUBMISSION BEFORE THE CIT(A) THE VALUE OF SHARE WAS RS.3.14 PER SHARE WHEREAS THE ASSESSEE HAS SOLD THE SHARES TO I TS RELATED PARTIES AT RS.2 PER SHARE TO RS.2.50 PER SHARE? 5. THAT THE ORDER OF THE LD. CIT(A) IS ERRONEOUS A ND IS NOT TENABLE ON FACTS AND IN LAW. 6. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDIC E TO EACH OTHER. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A MEND OR FORGO ANY GROUND(S) OF THE APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. 2. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WA S SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTH ORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APP LICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL P URPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 3. FROM PERUSING THE GROUNDS OF APPEAL, WE FIND T HAT THE TAX EFFECT IN THE REVENUES APPEAL IS LESS THAN RS.10,00,000/-, THERE FORE, THE DEPARTMENTS APPEAL IS NOT MAINTAINABLE, IN VIEW OF THE CIRCUL AR NO. 21/2015 DATED 10 TH ITA NO. 1957/DEL/2014 3 DECEMBER, 2015 ISSUED VIDE F.NO. 279/MISC. 142/2007 -ITJ (PT.) BY THE CBDT. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PARA NOS. 3 & 10 OF THE AFORESAID CBDTS CIRCULAR ARE REPRODUCED AS UNDER:- 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY L IMITS GIVEN HEREUNDER: S NO APPEALS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 2 BEFORE HIGH COURT 20,00,000/- 3 BEFORE SUPREME COURT 25,00,000/- IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETA RY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTI ONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEA L WAS FILED. 4. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORI TIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHDRAWN/ NOT PRESSED THE P RESENT APPEAL, IN VIEW OF THE AFORESAID INSTRUCTIONS SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN THE AMOUNT OF RS. 10 LACS, PRESCRIBED IN THE ABOVE SAID CBDTS INSTRUCTIONS. 5. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HA VE WITHDRAWN/ NOT PRESSED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WE ARE ALS O OF THE VIEW THAT THE SAID ITA NO. 1957/DEL/2014 4 INSTRUCTIONS ARE APPLICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/03/2016. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 09/03/2016 *SR BHATNAGAR* COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR