ACIT, New Delhi V. Sh. Ashok Bhasin, Gurgaon

ITA 4623/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3454 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-07-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 08-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK S
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI SHAMIM YAHYA ITA NO. 4623/DEL/2009 ASSTT. YR: 2004-05 ACIT, CIR. 48(1), VS. ASHOK BHASIN, NEW DELHI. 1304-B, BEVERLY PARK-II, APARTMENTS, DLF PHASE-II, MEHRAULI, GURGAON ROAD, GURGAON-122001. PAN/GIR NO. AAGPB8358H (APPELLANT ) ( RESPONDENT ) APPELLANT BY : MS. PRATIMA KAUSHIK S. DR RESPONDENT BY : SHRI ASHWANI TANEJA ADV. O R D E R PER R.P. TOLANI, J.M : THIS REVENUES APPEAL AGAINST CIT(A)S ORDER DATED 8-9-09 RELATING TO A.Y. 2004-05. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(APPEALS) HAS ERRED IN: DELETING THE PENALTY IMPOSED U/S 271(1)(C) OF THE I .T. ACT, 1961, AMOUNTING TO RS. 2,26,342/- BY HOLDING THAT THE ASS ESSEE INADVERTENTLY OMITTED TO INCLUDE SHORT-TERM CAPITAL GAIN OF RS. 4,82,648/- ARISING FROM THE SALE OF SHARES UNDER TH E STOCK OPTION PLAN. 3. LEARNED COUNSEL FOR THE ASSESSEE AT THE OUT SET SUBMITTED THAT THE TAX EFFECT INVOLVED IN REVENUES APPEAL IS LESS THAN RS . 3 LACS AND THEREFORE IN VIEW OF CBDT INSTRUCTION, THE DEPARTMENTAL APPEAL I S NOT MAINTAINABLE AND MAY BE DISMISSED AS SUCH. 2 4. LEARNED DR ON THE OTHER HAND, RELIED ON THE ORDE R OF AO. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD. IT IS NOT DISPUTED THAT THE T AX EFFECT INVOLVED IN REVENUES APPEAL IS LESS THAN RS. 3 LACS. AS PER CB DT INSTRUCTION NO. 1979 DATED 27-3-2000; INSTRUCTION NO. 2 OF 2005 DATED 2 4-10-2005; AND RECENT INSTRUCTION NO. 3 DATED 9 TH FEBRUARY 2011, DEPARTMENTAL APPEALS BEFORE THE ITAT WOULD NOT BE MAINTAINABLE IF THE TAX EFFECT IS BELOW RS. 3 LACS. ADMITTEDLY THE TAX EFFECT INVOLVED IN THE PRESENT A PPEAL IS BELOW RS. 3 LAKHS, THEREFORE, IN VIEW OF THE INSTRUCTIONS OF THE CBDT , REFERRED TO ABOVE, THE DEPARTMENTAL APPEAL IS NOT MAINTAINABLE. IN ARRIVIN G AT SUCH CONCLUSION WE ARE ALSO FORTIFIED BY THE RATIO OF DECISIONS IN THE FOLLOWING CASES: (1) CIT VS. PRADEEP KUMAR GUPTA (2007) 207 CTR (DEL) 11 5; (2) ACIT VS. SATISH CHAND JAIN (2006) 10 SOT 383 (DEL.) ; (3) ACIT VS. DOON VALLEY MOTORS (2006) 10 SOT 525 (DEL. ); (4) JCIT VS. DEV RAJ AGARWAL (2005) 92 TTJ (LUCKNOW) 43 6; (5) ITA NO. 3839/D/04 & C.O. 28/DEL/07 ITO VS. M/ S M.J. WARE HOUSING (P) LTD.& VICE VERSA DATED 31-8-2007. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 28-07-2011. SD/- SD/- ( SHAMIM YAHYA ) ( R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28-07-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 3