Asstt. Commissioner of Income Tax, Lucknow V. Shri Devendra Nath Dubey, Lucknow

ITA 361/LKW/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78520 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-05-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Assessee Lawyers: K R RASTOGI
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 361/LKW/2013 ASSESSMENT YEAR: 2007 - 08 ASSTT. CIT RANGE IV LUCKNOW V. SHRI. DEVENDRA N ATH DUBEY 20/31, INDIRA NAGAR LUCKNOW PAN: ACVPD7144B (APP ELL ANT) (RESPONDENT) C.O. NO.20/LKW/2013 [IN ITA NO. 361/LKW/2013] ASSESSMENT YEAR: 2007 - 08 SHRI. DEVENDRA NATH DUBEY 20/31, INDIRA NAGAR LUCKNOW V. ASSTT. CIT RANGE IV LUCKNOW PAN: ACVPD 7144B ( CROSS OBJECTOR ) (RESPONDENT) DEPARTMENT BY: SHRI. R. K. RAM, D.R. ASSESSEE BY: SHRI. K. R. RASTOGI, FCA DATE OF HEARING: 15 05 2014 DATE OF PRONOUNCEMENT: 20 05 2014 O R D E R PER SUNIL KUMAR YADAV: TH IS APPEAL I S PREFERRED BY THE REV ENUE AGAINST THE ORDER OF THE LD. CIT(A). 2. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION RAISING THE FOLLOWING GROUNDS: - 1 . LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.7,30,769/ - AS LONG TERM CAPITAL GAIN ON THE SALE OF PLOT. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : 2 . LD. C IT(A) DID NOT APPRECIATE THAT ENTIRE NET CONSIDERATIOIN ON SALE OF LAND HAS BEEN DEPOSITED IN THE CAPITAL GAIN ACCOUNT SCHEME, 1987 AND THERE IS NO TAXABLE CAPITAL GAIN. 3 . AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THA T THE TAX E FFECT INVOLVED IN THIS APPEAL IS LESS THAN THE PRESCRIBED MONETARY LIMIT, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED TH IS APPEAL IN VIEW OF THE INSTRUCTIONS ISSUED BY C.B.D.T. 4 . THE LEARNED D. R. DID NOT CONTROVERT THE ABOVE FACT. 5 . IT IS NOTICED TH AT SECTION 268A OF THE ACT HAS BEEN INSERTED BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 1.4.1999. THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: - 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME - TAX AUTHORITIES, FIXING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE OR DERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), AN INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM FILING A N APPEAL OR APPLICATION FOR REFERENCE ON THE SAME ISSUE IN THE CASE OF (A) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR (B) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFER ENCE HAS BEEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE DISPUTED PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UN DER SUB - SECTION (1) AND THE CIRCUMSTANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ] 6 . IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE INCO ME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THESE APPEALS IN VIEW OF THE PROVISIONS OF SECTION 268A OF THE ACT, SINCE THE TAX EFFECT IN THE INSTANT CASES IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. ACCORDINGLY, TH IS APPEAL I S DISMISSED. 7 . AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS THE GROUNDS RAISED IN THE CROSS OBJECTION. ACCORDINGLY, THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS NOT PRESSED. 8 . IN T HE RESULT, THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.5.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH MAY , 2014 JJ: 1505 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )