ITO, New Delhi V. Shri Sandip Kudesia, New Delhi

ITA 466/DEL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3392 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 24-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 24-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRAJ BANSAL
• Keywords: Cost of acquisition; Tax effect

Judgement Text

ITA NO.466/DEL/2013 ASSTT. YEAR 2008-09 ITO VS. SANDIP KUDESIA PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH - G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADI N. MISHRA, ACCOUNTANT MEMBER ITA NO. 466/DEL/2013 AY: 2008-09 ITO VS. SHRI SANDIP KUDESIA WARD-48(4) 221, B-BLOCK, GROUND FL OOR NEW DELHI. SARASWATI VIHAR, P ITAM PURA NEW DELHI 110 034. PANAKGPK4137J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NIRAJ BANSAL , SR. DR RESPONDENT BY : SHRI AKASH CHUGH, CA PER ANADI N. MISHRA, ACCOUNTANT MEMBER ORDER THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST ORDE R DATED 1.11.2012 OF LD. CIT(A) XXX, NEW DELHI. THE GROUNDS OF APPEAL ARE AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN (I) DELETING THE ADDITION OF RS. 35,00,000/- ON ACCOUNT OF LONG TERM CAPITAL GAINS. (II) THE PAYMENT FOR ACQUISITION OF PROPERTY IN QUESTION WAS ENTIRELY MADE BY THE ASSESSEE AND HIS WIFE WAS A MERE JOINT HOLDER FOR CONVENIENCE. (III) THE ULTIMATE BENEFICIAL OWNER OF THE PROPERTY WAS T HE ASSESSEE ONLY (IV) ENTIRE COST OF ACQUISITION HAS BEEN TAKEN BY THE AS SESSEE FOR THE PURPOSES OF CALCULATION OF INDEXED COST AS WELL AS FOR CALCULATING THE LONG TERM CAPITAL GAIN, (V) THERE IS NO BASE TO DIVIDE THE SALE CONSIDERATION E QUALLY BETWEEN THE ASSESSEE AND HIS WIFE. (VI) THE DIVORCE BETWEEN THE ASSESSEE AND HIS WIFE HAS T AKEN PLACE W.E.F. 30.11.2010 WHEREAS THE SALE TRANSACTION (05- 04-2007) HAS TAKEN PLACE MUCH BEFORE THAT (VII) THE ASSESSEES WIFE HAS ALSO TAKEN INTO ACCOUNT THE COST OF ACQUISITION WHILE CALCULATING CAPITAL GAINS AND HEN CE, SAME COST OF ITA NO.466/DEL/2013 ASSTT. YEAR 2008-09 ITO VS. SANDIP KUDESIA PAGE 2 OF 4 ACQUISITION HAS BEEN CLAIMED BOTH BY HUSBAND AND HI S WIFE, WHICH IS NOT IN ACCORDANCE WITH LAW. 2. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 2. WHEN THE APPEAL CAME UP FOR HEARING, THE LD. AUT HORISED REPRESENTATIVE OF THE RESPONDENT ASSESSEE CONTENDED AT THE OUTSET THAT TA X EFFECT IN THIS APPEAL WAS BELOW RS. 10 LAKHS. HE ALSO DREW OUR ATTENTION TO CBDT IN STRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015 IN WHICH REVENUE HAS BEEN DIRECTED N OT TO FILE ANY APPEAL IN INCOME TAX APPELLATE TRIBUNAL IF TAX EFFECT IS LESS THAN R S. 10,00,000/-. THE LD. AUTHORISED REPRESENTATIVE CONTENDED THAT THE APPEAL OF THE REV ENUE MAY BE DISMISSED IN THE LIGHT OF CBDT CIRCULAR (SUPRA). THE LD. DEPARTMENTAL REP RESENTATIVE APPEARING FOR REVENUE AGREED THAT THE TAX EFFECT IN THIS APPEAL FILED BY REVENUE IS LESS THAN RS. 10 LAKHS. HE ALSO AGREED THAT AFORESAID INSTRUCTION OF CBDT DATE D 10.12.2015 WAS APPLICABLE IN THIS APPEAL; AND AGREED THAT THE APPEAL HAS BECOME INFRU CTUOUS IN VIEW OF THIS CBDT INSTRUCTION. 3. WE HAVE HEARD BOTH SIDES AND WE HAVE ALSO PERUSE D THE MATERIALS ON RECORD. FROM THE ABOVE, WE FIND THAT THE TAX EFFECT IN REVE NUES APPEAL IS LESS THAN RS.10,00,000/- . THEREFORE, THIS APPEAL IS COVERED BY INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015 OF CBDT, ISSUED VIDE F.NO. 279/MISC. 142/2007-ITJ (PT.) . FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE AF ORESAID CBDT CIRCULAR IS REPRODUCED AS UNDER: .. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S NO APPEALS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 2 BEFORE HIGH COURT 20,00,000/- 3 BEFORE SUPREME COURT 25,00,000/- ITA NO.466/DEL/2013 ASSTT. YEAR 2008-09 ITO VS. SANDIP KUDESIA PAGE 3 OF 4 IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMIT S PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECI DED ON MERITS OF THE CASE. .. .. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND 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 INSTRUCTI ONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4. WE ARE OF THE VIEW THAT THE AFORESAID CBDT INSTR UCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015 IS APPLICABLE FOR THE PENDING APPEAL S FILED BY REVENUE, AS WELL AS FOR THE APPEALS TO BE FILED BY REVENUE HENCEFORTH. IN V IEW OF THE AFORESAID INSTRUCTION, THEREFORE, REVENUE SHOULD HAVE WITHDRAWN / NOT PRE SSED THE PRESENT APPEAL, SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN THE P RESCRIBED LIMIT OF RS. 10,00,000/- , SPECIFIED IN THE AFORESAID CBDT INSTRUCTION NO. 21/ 2015 DATED 10 TH DECEMBER, 2015. 5. IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE A PPEAL IS INCONSISTENT WITH THE AFORESAID CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015; AND HOLD THAT THE APPEAL IS, THEREFORE, NOT MAINTAINABLE. ACCORDINGL Y, WE DISMISS THE APPEAL IN LIMINE, APPEAL BEING NOT MAINTAINABLE; WITHOUT GOING INTO T HE MERITS. IN THE RESULT, THIS APPEAL, FILED BY REVENUE; STANDS DISMISSED. THIS WAS PRONOU NCED ORALLY IN THE OPEN COURT IMMEDIATELY AFTER CONCLUSION OF HEARING. THIS WRITT EN ORDER IS PRONOUNCED IN OPEN COURT ON 24/04/2017. SD/- SD/- (H.S. SIDHU ) ( ANADI N. MISHRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24 TH APRIL, 2017 *VEENA* ITA NO.466/DEL/2013 ASSTT. YEAR 2008-09 ITO VS. SANDIP KUDESIA PAGE 4 OF 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. PRINCIPAL CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR