ASST CIT 23(2), MUMBAI V. ASHWIN D NAGDA, MUMBAI

ITA 6070/MUM/2011

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0938 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-04-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 02-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM BATRU
• Assessee Lawyers: DR P DANIEL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.6070/M/2011 ASSESSMENT YEAR: 2004-05 INCOME TAX OFFICER 10(3)(3), ROOM NO.452, AAYKAR BHAVAN, 4 TH FLOOR, M.K. MARG, MUMBAI 400 020 VS. SHRI ASHWIN D. NAGDA, E-13, INDRAPRASTHA, JAIN MANDIR ROAD, SARVODAY NAGAR, MULUND (W), MUMBAI 400 080 PAN: AAAPN 6992L (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : DR. P. DANIEL, A.R. REVENUE BY : SHRI VIKRAM BATRU, D.R. DATE OF HEARING : 23.07.2015 DATE OF PRONOUNCEMENT : 23.07.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVENU E AGAINST THE ORDER DATED 01.06.2011 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERRED TO AS CIT(A)] AGITATING THE ACTION OF THE CIT(A) IN DIRECTING THE AO TO DELETE THE ADDITION MADE BY HIM TREATING THE INCOME FROM CAPITAL GAINS AS INCOME FROM OTHER SOURCES. 2. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN RS.4 LAKHS WHICH IS BEL OW THE PRESCRIBED LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL AS PER THE CB DT CIRCULAR NO.5 DATED 10.07.14. HE HAS SUBMITTED A WORKING OF THE TAX EF FECT IN THIS RESPECT. 3. LEARNED DR HAS NOT CONTROVERTED TO THE SUBMISSIO N MADE BY THE LEARNED AR. ITA NO.6070/M/2011 SHRI ASHWIN D. NAGDA 2 4. SINCE THE TAX EFFECT IN THE PRESENT APPEAL IS B ELOW PRESCRIBED LIMIT, THEREFORE, WE ARE OF THE VIEW THAT THE APPEAL OF TH E REVENUE IS NOT MAINTAINABLE. THE CENTRAL BOARD OF DIRECT TAXES (CB DT) VIDE INSTRUCTION NO.5 DATED 10.07.2014 HAS DECIDED THAT THE DEPARTME NTAL APPEAL BEFORE THE TRIBUNAL SHOULD NOT BE FILED IF THE TAX EFFECT IS B ELOW THE PRESCRIBED LIMIT OF RS.4 LAKH. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF 'MADHUKAR INAMDAR' - 185 TAXMANN. 101 HAS HELD THAT CBDT CIRCULAR IS APPLICABLE WHERE THE APPEALS ARE PENDING AND NOT ONLY TO THE APPEALS WHICH ARE TO BE FILED AFTER THE CIRCULAR WAS ISSUED. SIMILAR VIEW HAS BEEN AD OPTED BY THE CO- ORDINATE BENCHES OF THIS TRIBUNAL IN THE CASE OF 'ITO VS. SURENDERMAL R. LODHA' IN ITA NO.1628/MUM/11 FOR THE ASSESSMENT YEAR 2004-05 DECIDED ON 25.08.14 AND FURTHER IN THE CASE OF 'ITO VS. SHRI KULDEEP GANESH HAKE' IN ITA NO.4284/M/2013 FOR THE ASSESSMENT YEAR 2008-09 DECI DED ON 17.09.2014 . IN VIEW OF THE AFOREMENTIONED INSTRUCTIONS OF THE CBDT AND THE ABOVE JUDICIAL DECISIONS ON THE ISSUE, SINCE THE TAX EFFECT IN THE APPEAL OF THE REVENUE IS BELOW THE PRESCRIBED LIMIT, THEREFORE, THE PRESENT APPEAL OF THE REVENUE IS NOT MAINTAINABLE, CONSEQUENTLY, THE SAME IS HEREBY DISM ISSED U/S. 268A OF THE INCOME TAX ACT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE OPEN COURT ON 23.07.2015. SD/- SD/- (G.S. PANNU) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23.07.2015. * KISHORE, SR. P.S. ITA NO.6070/M/2011 SHRI ASHWIN D. NAGDA 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.