ITO,WARD-4(1), Nagpur V. SHRI VIKESH CHATURBHUJ AGRAWAL, Nagpur

ITA 389/NAG/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9666 (ITAT-NAGPUR)
• Duration Of Justice: 3 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Business income; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI P.K. BANSAL, VICE PRESIDENT AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO. 389/NAG./2013 ( ASSESSMENT YEAR : 200809 ) INCOME TAX OFFICER WARD4(1), NAGPUR APPELLANT V/S SHRI VIKESH CHATURBHUJ AGRAWAL 23, SHRADHA MIDDLE RING ROAD WARDHAMAN NAGAR, NAGPUR 440 008 PAN ABJPA9338H .... RESPONDENT ASSESSEE BY : SHRI NILESH SINDHWANI REVENUE BY : SHRI A.R. NINAWE DATE OF HEARING 27.06.2017 DATE OF ORDER 27.06 .2017 O R D E R PER AMARJIT SINGH, J.M. THE PRESENT APPEAL PREFERRED BY THE REVENUE IS DIRE CTED AGAINST THE IMPUGNED ORDER DATED 7 TH AUGUST 2013, PASSED BY THE LEARNED COMMISSIONER (APPEALS)II, NAGPUR, FOR THE ASSESSME NT YEAR 2008 09, ON THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A) IS CORRECT IN DELETING THE ADDITION OF ` 25,33,989 ON ACCOUNT OF BUSINESS INCOME WITHOUT CON SIDERING THE FACT THAT THE ASSESSEE IS NOT EARNING AGRICULTURAL INCOME FROM LAND, ALSO THE SOLE INTENTION FO THE ASSESSEE IS TO EARN PROFIT ON SALE OF LAND. 2 M/S. B.K. CONSTRUCTION 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) IS CORRECT IN NOT CONSIDERING TH AT THE ASSESSEE ENGAGED IN PURCHASE AND SALE OF AGRICULTURAL LAND S ITUATED IN COMMERCIALLY VIABLE AREA AND THE BUSINESS OF THE AS SESSEE IS PURCHASE AND SALE OF LAND. 2. AT THE VERY OUTSET, WE NOTED THAT IN THIS CASE THE TAX EFFECT ON THE INCOME UNDER DISPUTE IS LESS THAN ` 10 LAKH. WE FURTHER NOTED THAT THE CENTRAL BOARD OF DIRECT TAXES VIDE CIRCULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 FILE NO.279 OF MISC.142/2007ITJ(PT) HAS ISSUED THE DIRECTION IN SUPERSESSION OF THE INSTRUCTION NO.5/2 014 DATED 10 TH JULY 2014 IN PURSUANCE WITH THE POWER INTERESTED UNDER S ECTION 268A OF THE ACT THAT NO APPEAL SHOULD BE FILED BEFORE THIS TRIBUNAL IN CASE TAX EFFECT DOES NOT EXCEED ` 10 LAKH. THE TAX EFFECT IN THIS REGARD MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WHAT HAVE BEEN CHARGEABLE HAD SUCH TOTAL I NCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF ISSUE S AGAINST WHICH APPEAL IS INTENDED TO BE FILED. THIS CIRCULAR FURTH ER STATES THAT TAX WILL NOT INCLUDE ANY INTEREST THEREON THE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. WE FURTHER NOTED THAT UNDER PARA10 WHICH IS REPRODUCED AS UNDER, IT HAS BEEN MENTIONED IN THE CIRCULAR THAT T HIS INSTRUCTION WILL APPLY EVEN TO THE PENDING APPEALS. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDING APPEALS BELOW THE SPECIFI ED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED . APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED B Y THE 3 M/S. B.K. CONSTRUCTION INSTRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 3. IN THE IMPUGNED CASE, WE NOTED THAT THE TAX EFFECT ON THE ISSUE UNDER DISPUTE DOES NOT EXCEED ` 10 LAKH. IN VIEW OF THIS FACT AS PER THE INSTRUCTION, THE REVENUE IS NOT SUPPOSED TO PRESS THE APPEAL. WE, THEREFORE, DISMISS THE APPEAL FILED BY THE REVENUE IN LIMINE WITHOUT GOING INTO THE MERITS OF THE CASE AS IN OUR OPINION THE CIRCULARS ISSUED BY CBDT ARE BINDING ON THE DEP ARTMENTAL OFFICERS IN VIEW OF THE PROVISION OF SECTION 268A(1 ) OF THE ACT. THE SAID VIEW HAS BEEN TAKEN BY HONBLE SUPREME COURT I N THE CASE OF NAVNEET LAL ZAVERI V/S AAC, 56 ITR 198 (SC). WE ACC ORDINGLY DISMISS THE APPEAL FILED BY THE REVENUE. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2017 SD/ - P.K. BANSAL VICE PRESIDENT SD/ - AMARJIT SINGH JUDICIAL MEMBER NAGPUR, DATED: 27.06.2017 4 M/S. B.K. CONSTRUCTION COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, NAGPUR