ITO WD 21(3)(3), MUMBAI V. LIKHIYA D KANATH, MUMBAI

ITA 3795/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3947 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHCHIDANAND DUBE
• Assessee Lawyers: N K BHAT
• Keywords: Tax effect
• Section: 143(3); 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI , , BEFORE SHRI B R BASKARAN , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBER ITA NO. : 379 5 /MUM/20 12 (ASSESSMENT YEAR: 20 1 0 - 1 1 ) IN C OME TAX OFFICER TAX - 21(3) ( 3 ), ROOM NO. 507 , 5 TH FLOOR, AAY A KAR BHAVAN, M K MARG, MUMBAI - 400 020 VS VASTU KIRTI ENTERPRISES P LTD , SHOP N O. 8, OPP SADGURU TERRACE, SION KOLIWADA, MUMBAI - 400 0 22 PAN: AAAC V 1268 J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SACH CHI DANAND DUBE RESPONDENT BY : SHRI N K BHAT /DATE OF HEARING : 01 - 0 8 - 201 6 / DATE OF PRONOUNCEMENT : 01 - 0 8 - 2016 ORDER , : PER AMIT SHUKLA , J M: THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE AGAINST IMPUGNED ORDER DATED 12 . 0 3 .201 2 , PASSED BY CIT(A) - 3 2 , MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) FOR THE ASSESSMENT YEAR 200 9 - 1 0 , ON THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DIRECTING T HE AO TO ALLOW DEDUCTION U/S 54F AMOUNTING TO RS.34,29,500/ - WHILE COMPUTING THE CAPITAL GAIN. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS FAILED TO APPRECIATE THAT THE FACT OF THE PRESENT CASE ARE DIFFERENT FORM THE CA SE OF MS. 2 VASTU KIRTI ENTERPRISES P LTD ITA 3795 /MUM/ 2012 SUSHILA N JHAVERI (107 ITD 321). IN THE PRESENT CASE THE ASSESSEE ARE DIFFERENT FORM THE CASE OF MS. SUSHILA N JHAVERI (107 ITD 321). IN THE PRESENT CASE THE ASSESSEE PURCHASED TWO ADJACENT UNITS IN THE SAME LOCALITY IN JOINT CAPACITY AND NOT TWO RESIDENTIAL HOUSES SITUATED IN DIFFERENT LOCALITIES. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED T HAT, THE TAX EFFECT ON THE DISPUTED ISSUE RAISED BY THE REVENUE IN ITS APPEAL IS LESS THAN RS.10 LAKHS. IN SUPPORT, HE FILED FOLLOWING CALCULATION OF TAX EFFECT: - SR NO. PARTICULAR AMOUNT 1 DENIAL OF DEDUCTION U/S 54F OF THE ACT FROM THE LONG TERM CAPITA L GAIN INCOME OFFERED 34,29,500 2 TAX THEREON @ 20% (SINCE NET TAXABLE INCOME AFTER DEDUCTION WOULD BE LESS THAN RS.10 LAKHS, THERE WOULD BE NO SURCHARGE) 6,85,900 3 ADD: EC @ 2% + S & HEC @ 1% OF TAX AMOUNT AT SR. NO.2 20,577 4 TOTAL TAX EFFECT 7,06,477 3 . AFTER HEARING BOTH THE PARTIES, IT IS NOTICED THAT, THE DISPUTED ADDITION ON WHICH THE REVENUE HAS FILED AN APPEAL IS LESS THAN RS.10 LAKHS. LD. DR ALSO ADMITTED THAT THE TAX EFFECT ON THE DISPUTED ADDITION IN THE IMPU GNED APPEAL IS LESS THAN RS.10 LAKHS. 4 . IN VIEW OF THE AFORESAID FACT THAT THE TAX EFFECT IN THE IMPUGNED APPEAL IS LESS THAN RS.10 LAKHS, ACCORDINGLY, IN THE WAKE OF CBDTS CIRCULAR NO. 21 OF 2015 DATED 10.12.2015, WE HOLD THAT THE APPEAL FILED BY THE R EVENUE IS NOT MAINTAINABLE. FURTHER IT HAS ALSO BEEN CLARIFIED BY THE SAME CIRCULAR THAT THIS MONETARY LIMIT WILL APPLY ON PENDING APPEALS ALSO WHICH IS EVIDENT FROM PARA 10 OF THE IMPUGNED CIRCULAR, WHICH READS AS UNDER: - 3 VASTU KIRTI ENTERPRISES P LTD ITA 3795 /MUM/ 2012 10. THIS INSTRUCTION WILL APPL Y RETROSPECTIVELY TO PENDING 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 INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. THUS, THE APPEAL OF THE REVENUE IS TREATED AS DISMISSED AS NON - MAINTAINABLE. 5 . IN THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST AUGUST, 2016 . SD/ - SD/ - ( ) ( ) ( B R BASKARAN ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 1 ST AUGUST , 2016 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3 ) THE C IT 3 2 , MUMBAI . 4 ) THE C IT CITY - 21 , MUMBAI 5 ) , , / THE D.R. A BENCH, MUMBAI. 6 ) \ COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS