INCOME TAX OFFICER, WARD-2-1, JAIPUR V. SHRI VIJAY KUMAR PATNI, JAIPUR

ITA 613/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2118 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 27-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: ROHAN SOGANI CA DHK
• Keywords: Rectification of order; Valuation report; Tax effect
• Section: 154

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 HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 613/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11. ITO, WARD-2(1), JAIPUR. CUKE VS. SHRI VIJAY KUMAR PATNI 1, DEVERJI KA MANDI, JOHRI BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADYPP 7915 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI S.L. CHANDEL (ADDL. CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ROHAN SOGANI (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 31.08.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/09/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I, JAIPUR DATED 11.05.2017 PERTAINING TO A.Y. 2010-11. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN RESTRICTING THE ADDITION MADE U NDER THE HEAD LTCG TO RS. 1,72,84,492/- AS AGAINST RS. 2,10,88,170/-. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A) HAS ERRED IN NOT ENHANCING THE LONG TERM CAP ITAL GAIN BY RS. 83,37,420/- ON THE BASIS OF VALUATION REPORT OF THE DVO. THE APPELLANT CRAVES THE RIGHT TO AMEND ALTER OR AD D TO ANY OF THE GROUNDS OF APPEAL GIVEN BELOW. 2. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE PRESENT APPEAL IS NOT MAINTAINABLE IN VIEW OF THE CBDT CIRCULAR NO . 21 OF 2015 DATED 2 ITA NO. 613/JP/2017. SHRI VIJAY KUMAR PATNI, JAIPUR. 10.12.2015 AS THE TAX EFFECT IS LOWER THAN THE MONE TARY LIMIT OF 10 LAKHS. THE ASSESSEE HAS GIVEN A DETAILED CALCULATION OF TAX EF FECT WHICH IS REPRODUCED AS UNDER:- 1.3 IT IS SUBMITTED THAT, IN THIS CASE, TAX EFFECT WORK S OUT TO RS. 7,83,558/- WHICH DOES NOT EXCEED RS. 10,00,000. DETAILED CALC ULATION OF TAX EFFECT IS SHOWN BELOW: PARTICULARS AMOUNT TOTAL INCOME AS PER RETURN OF INCOME 3, 75, 690 ADDITIONS MADE BY AO 2,10,88,170 INCOME ASSESSED IN ASSESSMENT ORDER 2,14,63,860 RELIEF GIVEN UNDER RECTIFICATION ORDER U/S 154 38,00,000 TOTAL I NCOME ASSESSED 1,76,63,860 TAX ON TOTAL INCOME ASSESSED (I.E. 17663860)(A) TAX ON LONG TERM CAPITAL GAIN( 17288170*20%) 34,57,634 TAX ON BALANCE INCOME I.E 3,75,690 21,569 EDUCATION CESS ON ABOVE @3% 1,04,376 35,83,579 TOTAL INCOME AS REDUCED BY DISPUTED INCOME (17663860-3803678) 1,38,60,182 TAX ON ABOVE INCOME (I.E. 13860182)(B) TAX ON LO N G TERM CAPITAL GAIN (13484492*20%) 26,96,898 TAX ON BALANCE INCOME I.E. 3,75,690 21,569 EDUCATION CESS ON ABOVE @ 3% 81,554 28,00,021 TAX EFFECT (A - B) 7,83,558 IN VIEW OF THE ABOVE, APPEAL FILED BY THE DEPARTMEN T DESERVES TO BE DISMISSED AS TAX EFFECT IS LESS THAN 10 LACS. 3. LD. D/R HAS NOT CONTROVERTED THE FACTS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE DEMAND/ TAX EFFECT IN THE REVENUES APPEAL IN 3 ITA NO. 613/JP/2017. SHRI VIJAY KUMAR PATNI, JAIPUR. QUESTION IS BELOW RS. 10.00 LACS . UNDER THE POWERS VESTED BY SEC. 268A(1) OF THE INCOME TAX ACT, CBDT ISSUED CIRCULAR NO. 21 OF 2015 DATED 10.12.2015(F NO. 279/MISC. 142/2007-ITJ(PT) INSTRUCTING THE AUTH ORITIES BELOW DEPARTMENTAL APPEAL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DOES NOT EXCEED RS.10 LACS. THE C IRCULAR IS SPECIFICALLY MENTIONED TO BE APPLICABLE FOR ALL PENDING APPEALS. 4.1 SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIRE CTED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX EFFECT IS LESS THAN 10 LACS SHOULD BE EITHER WITHDRAWN OR NOT PRESSED B Y THE DEPARTMENTAL REPRESENTATIVES. 4.2 THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEP TIONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DISPUTE IN T HIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY CBDT FOR THE APPEAL THE SAME I S NOT MAINTAINABLE IN VIEW OF FORE GOING DISCUSSION. THEREFORE, THE PRESENT APPEAL IS DISMISSED AS NON-MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. 5. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 613/JP/2017 IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON MONDAY, THE 04 TH DAY OF SEPTEMBER 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 04/09/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 4 ITA NO. 613/JP/2017. SHRI VIJAY KUMAR PATNI, JAIPUR. 1. THE APPELLANT- ITO, WARD-2(1), JAIPUR. 2. THE RESPONDENT SHRI VIJAY KUMAR PATNI, JAIPUR . 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 613/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR