ITO WD 19(3)(2), MUMBAI V. JOEL DOMINIC GOVEYA, MUMBAI

ITA 543/MUM/2014

• Counselvise Citation: 54319914 RSA 2014
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: AJIT SHETTY
• Keywords: Cost of acquisition; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NO. 543/MUM/2014 / ASSESSMENT YEAR 2009-10 THE ITO WARD 19(3)(2), 3 RD FLOOR, PIRAMAL CHAMBER, ROOM NO.306, LALBAUG, MUMBAI 400 012. / VS. JOEL DOMINIC GOVEYA, 21,VICTORIA APARTMENT, 148, ST. ALEXIOUS ROAD, BANDRA (W), MUMBAI 400 050 ./ ./ PAN/GIR NO. : ANNPG 3737E ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI LOVE KUMAR RESPONDENT BY : SHRI AJIT SHETTY # $ % / DATE OF HEARING : 30/06/2015 # $ % / DATE OF PRONOUNCEMENT : 03/07/2015 / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-18, MUMBAI DATED 19/11/2013 F OR ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: (1) WHETHER ON THE FACTS AND UNDER THE CIRCUMSTA NCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) WAS RIGHT IN HOLDING THAT THE DA TE OF INDEXED COST OF ACQUISITION FOR COMPUTATION OF CAPITAL GAIN SHOULD BE THE YEAR IN WHICH THE PREVIOUS OWNER ACQUIRED THE PROPERTY AND NOT THE YE AR IN WHICH THE ASSESSEE BECAME THE OWNER. 2. AT THE OUTSET IT WAS POINTED OUT BY LD. AR THAT THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS BELOW RS.4.00 LACS AS THE DISPUTED ADDITION IS ON ACCOUNT OF LONG TERM CAPITAL GAIN WHICH A SUM OF RS.18.00 LACS, ON W HICH THE TAX EFFECT WOULD BE . / ITA NO. 543/MUM/2014 / ASSESSMENT YEAR 2009-10 2 RS.3.60 LACS. HE HAS SUBMITTED A CALCULATION OF TAX EFFECT, COPY OF WHICH WAS GIVEN TO LD. DR. LD. DR SUBMITTED THAT THIS APPEAL WAS FILED WHEN THE NEW CBDT INSTRUCTIONS WERE NOT AVAILABLE. HOWEVER, LD. DR DID NOT DISPUTE THE TAX EFFECT CALCULATION SUBMITTED BY LD. AR. 3. VIDE CBDT INSTRUCTIONNO.5/2014 NO.279/MISC.142/2007 -ITJ(PT)] DATED 10/07/2014, THE TAX EFFECT LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL BY THE REVENUE WAS ENHANCED FROM RS.3.00 LACS TO RS .4.00 LACS. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES. HOWEVER, ACCORDING TO FOLLOWING DECISIONS OF HONBLE JURISD ICTIONAL HIGH COURT, SUCH NOTIFICATIONS ISSUED UNDER SECTION 268A WOULD BE AP PLICABLE EVEN TO THE APPEALS FILED BEFORE ISSUE OF THE NOTIFICATION IF THE LIMIT IS ENHANCED: 1. IN THE CASE OF CIT VS. SMT. VIJAYA KAVEKAR (201 3 30 TAXMANN.COM 412) IT WAS HELD AS UNDER: SECTION 260A, READ WITH SECTION 268A, OF THE INCOME -TAX ACT, 1961 - HIGH COURT - APPEALS TO - TAX EFFECT - WHETHER INSTRUCTI ON NO. 3 OF 2011, DATED 9- 2-2011, SPECIFYING MONETARY LIMIT OF RS. 10 LAKHS F OR MAINTAINABILITY OF APPEAL BEFORE HIGH COURT IS APPLICABLE ON PENDING A PPEALS AS WELL - HELD, YES - WHETHER, THEREFORE, WHERE TAX EFFECT IN REVEN UES APPEALS WAS LESS THAN RS. 10 LAKHS WHICH WAS FILED EVEN PRIOR TO ISS UE OF INSTRUCTION DATED 9-2-2011, SAME WAS TO BE DISMISSED BEING NON-MAINTA INABLE - HELD, YES [IN FAVOUR OF ASSESSEE ] 2. IN THE CASE OF CIT VS. MADHUKAR IMANDAR (2009 1 85 TAXMAN 101] IT WAS HELD AS UNDER: SECTION 268A, READ WITH SECTION 119, OF THE INCOME- TAX ACT, 1961 - APPEAL OR APPLICATION FOR REFERENCE - FILING OF, BY INCOME -TAX AUTHORITY - WHETHER CIRCULAR/INCOME-TAX INSTRUCTION NO. 5 OF 2008, DATE D 15-5-2008 ISSUED BY CBDT DIRECTING INCOME-TAX AUTHORITIES NOT TO FILE A PPEALS IF TAX EFFECT IS LESS THAN RS. 4 LAKHS WOULD BE APPLICABLE TO CASES PENDI NG BEFORE HIGH COURT AS ON 15-5-2008 EITHER FOR ADMISSION OR FOR FINAL D ISPOSAL, EVEN THOUGH SAID APPEALS AND/OR PETITIONS WERE FILED BEFORE HIG H COURT PRIOR TO 15-5- 2008 - HELD, YES . / ITA NO. 543/MUM/2014 / ASSESSMENT YEAR 2009-10 3 5. IN THIS VIEW OF THE SITUATION, WE DISMISS THE APPEAL FILED BY THE REVENUE ON ACCOUNT OF LOW TAX EFFECT AS PER AFOREMENTIONED INSTRUCTION ISSUED BY CBDT. ORDER PRONOUNCED IN THE OPEN COURT ON 30/06/2015 # + , - 03/07/2015 # SD/- SD/- ( . . / B.R.BASKARAN ) . . /I.P.BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; , DATED 03/07/2015 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. /$ ( ) / THE CIT(A)- 4. /$ / CIT 5. 01 $23 , % 23 , / DR, ITAT, MUMBAI 6. 4 / GUARD FILE. / BY ORDER, 0$ $ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS