ITO 14(2)-1, MUMBAI V. DILIPKUMAR J. PARIYANI, MUMBAI

ITA 2509/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49030 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 09-05-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 31-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDEEP DAHIYA
• Keywords: Capital asset; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER & SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER. I.T.A. NO. 2509/MUM/2010. ASSESS MENT YEAR : 1997-98. THE INCOME-TAX OFFICER, DIL IPKUMAR J. PARIYANI, 14(2)1, MUMBAI. VS. FLAT NO.26&27, 2 ND FLOOR, BLDG.NO.1, RAJRATAN PLACE CO-OP. HSG. SOCIETY LTD ., PLOT NO.60, SHAKAR LANE, KANDIVALI (W) , MUMBAI- 400067. PAN : AALPP5326P APPELLANT. RESPONDENT. APPELLANT BY : SHR I SANDEEP DAHIYA RESPONDENT BY : NONE. O R D E R PER P.M. JAGTAP, A.M. : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LEARNED CIT(APPEALS)-25, MUMBAI DATED 04-10-2010 AND THE G ROUNDS RAISED BY THE REVENUE READ AS UNDER : 1. THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE ASSESS EE WAS NOT HOLDING ANY CAPITAL ASSET, IGNORING THE FACT THAT THE SHARE OF THE ASSESSEE IN THE TOTAL FSI AVAILABLE TO THE CHS IS THE CAPITAL ASSET HELD BY THE ASSESSEE. 2. THE LD. CIT(A) ERRED IN HOLDING THAT THE CAPITAL AS SET HAS NOT BEEN SOLD, EXCHANGED OR RELINQUISHED IGNORING THE FACT THAT TH E ASSESSEES SHARE IN THE TOTAL FSI AVAILABLE TO THE CHS HAS BEEN SOLD TO THE DEVELOPER I.E. NEW INDIA CONSTRUCTION CO. AND THE CONSIDERATION OF RS. 11,75,130/- IS TOWARDS THE SALE OF THIS CAPITAL ASSET. 2 ITA NO.2509/MUM/2010 ASSTT.YEAR : 1997-98 . 2. WE HAVE HEARD THE ARGUMENTS OF THE LEARNED DR AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS NOTED AT THE OUTSET FROM THE GROUND RAISED BY THE REVENUE, THE TAX EFFECT INVOLVED IN THIS APPEAL FIL ED BY THE REVENUE IS LESS THAN RS.3 LAKHS AND THIS POSITION HAS NOT BEEN DISPUTED EVEN BY THE LEARNED DR. AS PER THE CBDT INSTRUCTION NO. 3 OF 2011 ISSUED ON 09-02- 2011, THE MONETARY LIMIT FOR FILING OF AN APPEAL BY THE DEPARTMENT BEFORE THE TR IBUNAL HAS BEEN REVISED TO RS.3 LAKHS. AS DECIDED BY THE CBDT, APPEALS SHALL NOT BE FILED BY THE DEPARTMENT IN CASES WHERE TAX EFFECT DOES NOT EXCEED RS.3 LAKHS. IN THE CASE OF CIT VS. MADHUKAR INAMDAR (HUF) 318 ITR 149, THE HONBLE BOMBAY HIGH COURT HAS HELD THAT CBDT INSTRUCTION FIXING ANY MONETARY LIMIT FOR FILI NG THE APPEAL WOULD APPLY EVEN FOR THE PENDING CASES. KEEPING IN VIEW THE SAID DEC ISION OF HONBLE JURISDICTIONAL HIGH COURT AND THE BOARD INSTRUCTION NO. 3 OF 2011 DATED 09-02-2011, WE HOLD THAT THE PRESENT APPEAL FILED BY THE DEPARTMENT INV OLVING TAX EFFECT OF LESS THAN RS.3 LAKHS IS NOT MAINTAINABLE. THE SAME IS, THEREF ORE, DISMISSED AT THE THRESHOLD. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED ON THIS 20 TH DAY OF MAY, 2011. SD/- SD/- (ASHA VIJAYRAGHAVAN) (P.M. JAG TAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 20 TH MAY, 2011. WAKODE 3 ITA NO.2509/MUM/2010 ASSTT.YEAR : 1997-98 . COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, D-BENCH. (TRUE COPY) BY ORDE R ASSTT. REGI STRAR, ITAT, MUMBAI BEN CHES, MUMB AI,