ACIT, Faridabad V. Shri Laxman Singh, Faridabad

ITA 2755/DEL/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7749 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-05-2016
• Assessment Year: 2000-2001
• Appeal Filed On: 27-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 54B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 2755/DEL/2011 ASSESSMENT YEAR: 2000-01 ACIT, CIRCLE-I, VS. M/S LAXMAN SINGH, BLOCK-I-B, NEW CGO COMPLEX, S/O SH. KANHI RAM, VIL LAGE-SIHI FARIDABAD TEHSIL, BALLABGARH, FARIDABAD (PAN: AILPS4777M) ( APPELLANT) (RESPONDENT) APPELLANT BY : SH. AMIT JAIN, SR. DR RESPONDENT BY : SH. VIJAY KUMAR GUPTA, ADV . DATE OF HEARING : 18-5-2016 DATE OF ORDER : 01-06-2016 ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 07.3.2011 OF LD. CIT(A), FARIDABAD PERTAINING TO AS SESSMENT YEAR 2000-01 ON THE FOLLOWING GROUNDS:- 1. 'ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN ANNULLING T HE ASSESSMENT FRAMED BY THE AO, ON THE GROUNDS THAT NOTICE U/S 148 WAS N OT SERVED UPON THE ASSESSEE IN VIEW OF THE FACTS THAT THIS WAS NOT A P ENDING ISSUE FOR DECISION AS THE SAME WAS CONSIDERED BY THE LD. CIT(A) WHILE DECIDING THE ORIGINAL APPEAL. 2. ON THE FACTS A D IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN ANNULLING THE ASSE SSMENT FRAMED BY THE AO, BY IGNORING THE RATIO OF THE DECISION OF THE HO N'BLE APEX COURT IN THE CASE OF CIT VS JAI PRAKASH SINGH REPORTED IN 219 IT R 737 (SC) WHEREIN IT IS HELD THAT; ITA NO.2755/DEL/2011 2 'AN OMISSION TO SERVE OR ANY DEFECT IN THE SERVICE OF NOTICES PROVIDED BY PROCEDURAL PROVISIONS DOES NOT EFFACE O R ERASE THE LIABILITY TO PAY TAX WHERE SUCH LIABILITY IS CREATE D BY DISTINCT SUBSTANTIVE PROVISIONS [CHARGING SECTIONS]. ANY SUC H OMISSION OR DEFECT MAY RENDER THE ORDER MADE IRREGULAR, DEPENDI NG UPON THE NATURE OF THE PROVISION NOT COMPLIED WITH BUT CERTA INLY NOT VOID OR ILLEGAL.' 3. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDIT ION OF 6,04,124/- [RS.6,36,491/- MINUS RS. 32,367/-], MADE BY AO ON ACCOUNT OF INTEREST ON ENHANCED COMPENSATION, BY IGNORING THE FACTS THAT T HE INTEREST ORDERED BY THE COURT ON ENHANCED COMPENSATION FROM THE DATE OF TAKING OVER THE POSSESSION OF THE LAND TO THE DATE OF PAYMENT OR DE POSIT OF THE ENHANCED COMPENSATION IS IN THE NATURE OF COMPENSATION, WHIC H AS PER FINDINGS OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS GHANSH YAM (HUF) (2009) 315 ITR 1 (SC) IS TO BE TAXED IN THE YEAR OF RECEIP T. 4. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN ALLOWING THE DEDUC TION TO THE ASSESSEE UNDER SECTION 54B AND 54EA OF THE ACT BY IGNORING T HE FACTS THAT THE INVESTMENT IN PURCHASE OF AGRICULTURAL LAND WAS MAD E IN THE JOINT NAMES AND NOT IN THE INDIVIDUAL NAME OF THE ASSESSEE AND FURTHER THE INVESTMENT WAS NOT MADE WITHIN THE STIPULATED PERIOD FROM THE DATE OF ACTUAL OF CAPITAL GAIN AND RECEIPT OF COMPENSATION.' 5. 'THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD, DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIME O F HEARING OF APPEAL.' 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MAT ERIAL ON RECORD. FROM THE ABOVE, WE FIND THAT THE TAX EFFEC T IN THE REVENUES APPEAL IS LESS THAN RS.10,00,000/-, THEREFORE, THE DEPARTMENTS APPEAL IS NOT MAINTAINABLE, IN VIEW OF THE CIRCULAR NO. 2 1/2015 DATED 10 TH DECEMBER, 2015 ISSUED VIDE F.NO. 279/MISC. 142/2007 -ITJ (PT.) BY THE ITA NO.2755/DEL/2011 3 CBDT. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PA RA 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. 3. 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. 4. 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 INSTRUCTIONS ARE APPLICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. ITA NO.2755/DEL/2011 4 5. IN THE RESULT, APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/06/2016. SD/- SD/- (O.P. KANT) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 01/06/2016 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR