ACIT CIR 4(2), MUMBAI V. NEHARAJ STOCK BRPKERS P.LTD, MUMBAI

ITA 635/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3904 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 27-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVAJI B GHODE
• Keywords: Business income; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 635/MUM/2014 (ASSESSMENT YEAR:2010-11) THE ACIT, CIRCLE-4(2), MUMBAI-400 020 APPELLANT VS. M/S. NEHARAJ STOCK BROKERS PVT. LTD., 51, ADVENT, 12A, JAGANNATH BHOSALE MARG, NARIMAN POINT, MUMBAI-400 021 RESPONDENT PAN: AABCN4279L /BY APPELLANT : SHRI SHIVAJI B. GHODE, D.R. /BY RESPONDENT : SHRI NARESH KUMAR, A.R. /DATE OF HEARING : 04.08.2016 /DATE OF PRONOUNCEMENT : 08.08.2016 ORDER PER RAJESH KUMAR, A.M: THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-8, MUMBAI, DAT ED 01.11.2013 FOR A.Y. 2010-11 ON FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN TREATING THE ASSESS EE AS INVESTOR INSTEAD OF TRADER AND THEREBY TREATING THE ITA NO.635/MUM/14 A.Y. 10-11 [ACIT VS. M/S. NEHARAJ STOCK BROKERS PVT. LTD.] PAGE 2 INCOME EARNED BY THE ASSESSEE OF RS.37,91,851 AS SHORT TERM CAPITAL GAIN INSTEAD OF BUSINESS INCOME. 2. BEFORE US, AT THE OUTSET, LD. AUTHORIZED REPRESE NTATIVE SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NE EDS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF T HE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12.2015. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT TH E TAX EFFECT IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. 2.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUND OF APPEA L RAISED BY THE REVENUE, WE PRIMA-FACIE FIND THAT THE TAX EFFEC T IN THIS APPEAL IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10.12.20 15 (CIRCULAR NO. 21 OF 2015), NO DEPARTMENT APPEALS AR E TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS. 10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PENDING APPEALS. IN THE PRES ENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT ON THE ADDITION S WHICH ARE IN DISPUTE, THE TAX EFFECT IS LESS THAN RS. 10 LACS AND IN THE ABSENCE OF ANY MATERIAL ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXEMPTIONS SPECIFIED IN CLAUSE (8) OF THE AFORESAID CBDT CIRCULAR, WE ARE OF THE VIEW THAT THE MONETARY LIMI T PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESAID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTMENT AND ITA NO.635/MUM/14 A.Y. 10-11 [ACIT VS. M/S. NEHARAJ STOCK BROKERS PVT. LTD.] PAGE 3 THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, IN CASE THERE IS ANY ERROR IN THE COMPUTATION OF THE TAX EFFECT INVOLVED OR IF FOR AN Y REASON, THE AFORESAID CBDT CIRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN TO THE REVENUE TO SEEK REVIVAL OF THE APPEAL. IN SUCH CIRCUMSTANCES, WE DISMISS THE APPEAL OF REVENUE WIT HOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. 3. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS THE 08 TH DAY OF AUGUST, 2016. SD/- SD/- (SHAILENDRA KUMAR YADAV) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: DATED 08/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. BY ORDER / , / , ,