INCOME TAX OFFICER, WARD-2-4, KOTA V. SHRI PRAHALAD SINGH , KOTA

ITA 539/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3948 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 20-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHARAJCIT
• Keywords: Tax effect
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 539/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 INCOME TAX OFFICER, WARD-2(4), KOTA. CUKE VS. SHRI PRAHALAD SINGH THROUGH L/H SHRI KISHAN SINGH, VILLAGE PUNIA DEVRI, THE. LADPURA, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT IZR;K{KSI.K @ C.O. NO. 16/JP/2018 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 539/JP/2018) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR 2011-12 SHRI PRAHALAD SINGH THROUGH L/H SHRI KISHAN SINGH, VILLAGE PUNIA DEVRI, THE. LADPURA, KOTA CUKE VS. INCOME TAX OFFICER, WARD-2(4), KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: IZR;K{KSID@ OBJECTOR IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI A. S. NEHARA(JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P. C. PARWAL (ADV.) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/08/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 10/08/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M.: THIS IS THE APPEAL FILED BY THE REVENUE AND THE CR OSS OBJECTION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) , KOTA DATED 01/02/2018 PERTAINING TO THE A.Y. 2011-12 WHEREIN T HE REVENUE AND THE ASSESSEE HAVE TAKEN FOLLOWING GROUNDS OF APPEAL:- ITA 539/JP/2018 & C.O. 16/JP/2018_ ITO, KOTA VS SHRI PRAHALAD SINGH, KOTA 2 GROUNDS OF REVENUES APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 65,00,000/- M ADE BY THE AO ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF LAN D, HOLDING THAT THE LAND SOLD BY THE ASSESSEE WAS NOT A CAPITA L ASSET. GROUNDS OF ASSESSEES C.O.: 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE VALIDITY OF NOTICE ISSUED U/S 148 EVEN WHEN THE NOT ICE IS NOT ISSUED TO ALL THE LEGAL HEIRS OF THE ASSESSEE AND T HE LEGAL HEIRS HAVE NOT INHERITED ANY PROPERTY FROM THE DECEASED A SSESSEE. 2. FIRSTLY, WE WILL TAKE UP THE CROSS OBJECTION FIL ED BY THE ASSESSEE WHEREIN HE HAS CHALLENGED THE ACTION OF THE ASSESSI NG OFFICER IN ISSUING THE NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2.1 AT THE OUTSET OF HEARING, THE LD AR OF THE ASSE SSEE STATED THAT HE DOESNT WISH TO PRESS THE GROUND SO TAKEN IN THE AS SESSEES C.O., THEREFORE, THE SAME STANDS DISMISSED AS NOT PRESSED . 3. NOW WE TAKE THE REVENUES APPEAL. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE HAS RAISED AN OBJECTION OF MAINT AINABILITY OF THE APPEAL OF THE REVENUE DUE TO THE TAX EFFECT NOT EXCEEDING RS. 20 LACS AS PER THE CBDT CIRCULAR NO. 3 OF 2018 DATED 11 TH JULY, 2018. 3.1. THE LD. D/R HAS FAIRLY SUBMITTED THAT THE TAX EFFECT INVOLVED IN THE REVENUES APPEAL COMES TO RS 12,89,560/- LESS THAN RS 20 LACS WHICH IS PRESCRIBED THRESHOLD LIMIT IN TERMS OF THE CBDT CIR CULAR NO. 3/2018 DATED 11 TH JULY, 2018 ISSUED IN SUPERSESSION OF ITS EARLIER C IRCULAR NO. 21 OF 2015 DATED 10.12.2015. ITA 539/JP/2018 & C.O. 16/JP/2018_ ITO, KOTA VS SHRI PRAHALAD SINGH, KOTA 3 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE DEMAN D/ TAX EFFECT IN THE REVENUES APPEAL IN QUESTION IS BELOW RS. 20.00 LAC S. UNDER THE POWERS VESTED BY SECTION. 268A(1) OF THE IT ACT, CBDT HAS RECENTLY ISSUED CIRCULAR NO. 3/2018 DATED 11TH JULY, 2018 (F NO. 27 9/MISC. 142/2007- ITJ(PT) INSTRUCTING THE AUTHORITIES BELOW THAT DEPA RTMENTAL APPEAL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFEC T DOES NOT EXCEED RS. 20 LACS. THE CIRCULAR IS SPECIFICALLY MENTIONED TO BE APPLICABLE FOR ALL PENDING APPEALS. 5. SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIREC TED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX EFFECT IS NOT EXCEEDING THAN 20 LACS SHOULD BE EITH ER WITHDRAWN OR NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES. 6. THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEPT IONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DIS PUTE IN THIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY C BDT FOR THE APPEAL, THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 3 OF 2018 DATED 11.07.2018. ACCORDINGLY THE APPEAL OF THE REVENUE IS DISMISSED AS NOT PRESSED/WITHDRAWN. 7. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE AN D THE C.O. OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/08/2018 SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV ) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER ITA 539/JP/2018 & C.O. 16/JP/2018_ ITO, KOTA VS SHRI PRAHALAD SINGH, KOTA 4 TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10/08/2018 *GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD-2(4), KOTA 2. IZR;FKHZ@ THE RESPONDENT- SHRI PRAHALAD SINGH, KOTA 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 539/JP/2018 & CO 16/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR