ITO, Kushinagar V. Shri Sushil Kumar Tibrewal, Kushinagar

ITA 400/ALLD/2014

• Counselvise Citation: 40020714 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 16-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PANDEY
• Assessee Lawyers: ASHISH BANSAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD (SMC) BENCH ALLAHABAD BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.400/ALLD/2014 ASSESSMENT YEAR: 2009 - 10 INCOME TAX OFFICER, VS. SHRI SUSHIL KUMAR TIBREWAL WARD - KUSHINAGAR. PROP. M/S KAMADGIRI INTERPRISES CBI ROAD, PADRAUNA, KUSHINAGAR. PAN:ABHPT8261C (APPELLANT) (RESPONDENT) C.O. NO. 42 /ALLD/201 4 ASSESSMENT YEAR: 200 9 - 10 SHRI SUSHIL KUMAR TIBREWAL VS. INCOME TAX OFFICER, PROP. M/S KAMADGIRI INTERPRISES WARD - KUSHINAGAR. CBI ROAD, PADRAUNA, KUSHINAGAR. PAN:ABHPT8261C (APPELLANT) (RESPONDENT) REVENUE BY : SHRI A.K. PANDEY, SR.DR. ASSESSEE BY : SHRI ASHISH BANSAL, ADV. DATE OF HEARING: 15 . 10 .2015 ORDER PRONOUNCED ON: 18 /1 1 /2015 ORDER THE REVENUE IS IN APPEAL BEFORE ME AGAINST THE ORDER OF LD. CIT(A) - III , LUCKNOW, DATED 0 5 .0 2 .201 4 , PASSED FOR A.Y. 200 9 - 10 AND ASSESSEE HAS FILED CROSS - OBJECTION BEARING NO. 42 / ALLD /201 4 FOR A.Y. 2009 - 10. ITA NO. 400/ALLD/2014 2. AT THE TIME OF HEARING, THE FACT THAT THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS LESS THAN RS.4 LACS . CONSIDERING THE JUDICIAL PRECEDENT AVAILABLE, I FIND THAT THE DEPARTMENT OUGHT NOT TO HAVE ITA NO.400/ALLD/2014 & C.O. NO.42/ALLD/2014 2 FILED THIS APPEAL. THE SAID POSITION WAS NOT CONTROVERTED BY THE LD. SR. DR ALTHOUGH HE SUPPORTED THE ORDER OF THE A.O. 3. IT IS NOT IN DISPUTE THAT THE BOARDS I NSTRUCTION OR DIRECTIONS ISSUED TO THE INCOME - TAX AUTHORITIES ARE BINDING ON THESE AUTHORITIES, THEREFORE, THE PRESENT APPEAL IN VIEW OF THE ABOVE SAID PROVISIONS MENTIONED IN SECTION 268 A OF THE ACT OUGHT NOT TO HAVE BEEN FILED BY THE DEPARTMENT SINCE TH E TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE AMOUNT PRESCRIBED FOR NOT FILING THE APPEAL. 4. IT IS NOTICED THAT THE CBDT HAS ISSUED INSTRUCTION NO.5 OF 2014 DATED 10.07.2014, BY WHICH THE CBDT HAS REVISED THE MONETARY LIMIT TO RS. 4,00,000/ - FOR FIL ING THE APPEAL BEFORE THE TRIBUNAL. 5. KEEPING IN VIEW THE CBDT INSTRUCTION NO.5 OF 2014 DATED 10.07.2014 AND ALSO THE PROVISIONS OF SECTION 268A OF INCOME TAX ACT, 1961, I AM OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL. WHILE TAKING SUCH A VIEW, I AM FORTIFIED BY THE FOLLOWING DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT: - 1. CIT V OSCAR LABORATORIES P. LTD (2010) 324 ITR 115 (P&H) 2. CIT V ABINASH GUPTA (2010) 327 ITR 619 (P&H) 3. CIT V VARINDERA CO NSTRUCTION CO. (2011) 331 ITR 449 (P&H)(FB). ITA NO.400/ALLD/2014 & C.O. NO.42/ALLD/2014 3 6. SIMILARLY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. DELHI RACE CLUB LTD. IN ITA NO.128/2008, ORDER DATED 03.03.2011 BY FOLLOWING THE EARLIER ORDER DATED 02.08.2010 IN ITA NO.179/1991 IN THE CASE OF CIT DELHI - III V. M/S. P.S. JAIN & CO. HELD THAT SUCH CIRCULAR WOULD ALSO BE APPLICABLE TO PENDING CASES. 7. FROM THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT, IT IS CLEAR THAT THE INSTRUCTIONS ISSUED IN THE CIRCULARS BY CBDT ARE APPLICABLE FOR PENDING CASES ALSO. THEREFORE, BY KEEPING IN VIEW THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CASES, I AM OF THE CONSIDERED VIEW THAT INSTRUCTION NO.5/14 DATED 10.07.2014 ISSUED BY THE CBDT ARE APPLICABLE FOR THE PENDING CASES ALSO AND IN THE SAID INSTRUCTIONS, MONETARY TAX LIMIT FOR NOT FILING THE APPEAL BEFORE THE ITAT IS RS. 4.00 LAKHS. 8. IN VIEW OF THE ABOVE, WITHOUT GOING INTO MERITS OF THE CASE, I DISMISS THE APPEAL FILED BY THE REVENUE. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES. 9. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. C.O. NO. 42/ALLD/2014 10. THE ASSESSEE HAS TAKEN TWO GR OUNDS IN THIS APPEAL ONE RELATE TO THE CHARGING OF INCOME UNDER THE HEAD CAPITAL GAIN INSTEAD OF INC OME FROM OTHER SOURCES AMOUNTING TO RS. 3,09,375/ - . T HE OTHER GROUND RELATE TO THE DISALLOWANCE OF THE CLAIM OF INTEREST AMOUNTING TO RS.76,118/ - FOR HOUSING LOAN. ITA NO.400/ALLD/2014 & C.O. NO.42/ALLD/2014 4 11. AFTER HEARING THE RIVAL SUBMISSIONS I NOTED THAT THE AO HAS TREATED THE CAPITAL GAIN SHO WN BY THE ASSESSEE AS INCOME FROM OTHER SOURCES AS THE ASSESSEE COULD NOT SUBMIT THE DATE OF SALE OF THE PROPERTY. THE ASSESSEE WAS UNABLE TO SUBMIT THE COPY OF THE AGREEMENT AS THE ASSESSEE HAS GONE FOR PILGRIMAGE AND HAS COME BACK ON 5.11.2002 BUT THE AO WITHOUT ADJOURNING THE CASE BEING TIME BARRED PASSED THE ORDER ON 3 0 .12.2011. THE LD. CIT(A) HAS CONFIRMED THE ORDER OF THE AO. 12. IN MY OPINION , SUBMISSION OF THE EVIDENCE ALONG WITH THE DATE OF SALE OF THE PROPERTY IN RESPECT OF WHICH CAPITAL GAIN HAS RISEN IS NECESSARY. THE COPY OF THIS AGREEMENT HAS ALSO NOT BEEN FILED BEFORE US. I THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY OF BOTH THE PARTIES AND SET ASIDE THE ORDER OF THE AO AND THIS ISSUE RESTORE TO THE FILE OF THE AO WITH THE DIRECTION THAT THE AO SHALL RE - ASSESSMENT IN ACCORDANCE WITH LAW. 13. ON APPRECIATION OF THE EVIDENCES , AS MAY BE FILED BY THE AO TO PROVE THE SALE OF THE PRO PERTY ON WHICH THE CAPITAL HAS RISEN. THE ASSESSEE IS ALSO DIRECTED TO SUBMIT THE COPY OF THE SALE AGREEMENT/SALE DEED , SO THAT THE AO CAN REASSESSMENT IN THE RIGHT PROSPECTIVE. THUS THE FIRST GROUND TAKEN BY THE ASSESSEE IN THE CROSS - OBJECTION IS STATISTI CALLY ALLOWED. 14. THE SECOND GROUND RELATE TO THE CLAIM OF THE INTEREST ON THE LOAN FROM HOUSING PROPERTY AMOUNTING TO RS.76,118/ - . ITA NO.400/ALLD/2014 & C.O. NO.42/ALLD/2014 5 15. AFTER HEARING THE RIVAL SUBMISSION AND GOING THROUGH THE BANK STATEMENT THE COPY OF WHICH AVAILABLE AT PAGE NOS.17 TO 18 OF THE PAPER BOOK. I NOTED THAT THE ASSESSEE HAS TAKEN THE HOUSING LOAN AND HAS PAID THE INTEREST TO THE BANKER ON THE SAID HOUSING LOAN AMOUNTING TO RS.20 LAC. I THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND DELETE THE DISALLOWANCE OF RS.76,118 / - . THUS GROUND NO. 2 IS TAKEN BY THE ASSESSEE IS ALLOWED. 16. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED AND CROSS - OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 / 1 1 /2015. SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER DATED: 18 / 1 1 /2015 A.K.V. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR