ITO Wd.2(1), Aurangabad, v. Shitalchand Sudhakar Dahale,

ITA 933/PUN/2008 | 2004-2005
Pronouncement Date: 13-08-2010 | Result: Dismissed

Appeal Details

RSA Number 93324514 RSA 2008
Assessee PAN ABIPD0178R
Bench Pune
Appeal Number ITA 933/PUN/2008
Duration Of Justice 2 year(s) 1 month(s) 18 day(s)
Appellant ITO Wd.2(1), Aurangabad,
Respondent Shitalchand Sudhakar Dahale,
Appeal Type Income Tax Appeal
Pronouncement Date 13-08-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted TM
Tribunal Order Date 13-08-2010
Assessment Year 2004-2005
Appeal Filed On 25-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI SHAILENDRA KUMAR (JM) AND SHRI D. KARUN AKARA RAO (AM) ITA NO. 933/PN/2008 (ASSTT. YEAR : 2004-05) THE INCOME-TAX OFFICER WARD 2(1) JEEVAN SUMAN 2 ND FLOOR LIC BUILDING N-5 CIDCO AURANGABAD 431 003 . APPELLANT V. SHRI SHITALCHAND SUDHAKAR DAHALE PLOT NO.7 RACHANAKAR COLONY STATION ROAD AURANGABAD PAN: ABIPD 0178 R . RESPONDENT C.O.NO. 27/PN/2009 (ARISING OUT OF ITA NO. 933/PN/2008) (ASSTT. YEAR : 2004-05) SHRI SHITALCHAND SUDHAKAR DAHALE PLOT NO.7 RACHANAKAR COLONY STATION ROAD AURANGABAD PAN: ABIPD 0178 R . CROSS OBJECTOR V. I.T.O WARD 2(1) JEEVAN SUMAN 2 ND FLOOR LIC BUILDING N-5 CIDCO AURANGABAD 431 003 . RESPONDENT ASSESSEE BY : SHRI S.N. PURANIK DEPARTMENT BY : MS. MANJU AJWANI ORDER PER: D. KARUNAKARA RAO AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) AURANGABAD DATED 03/03/2008 FOR THE A.Y. 2004-05. TH E GROUNDS TAKEN BY THE REVENUE READ AS UNDER: ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE IN LAW THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS.6 83 035/- MADE ON ACCOUNT OF BUSINESS INCOME FROM SALE OF PLOTS WHICH IS NOT CORRECT. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE IN LAW THE LEARNED CIT(A) ERRED IN TREATING THE INCOME ON SALE OF PLOTS AS CAPITAL G AINS INSTEAD OF TREATING THE SAME AS BUSINESS INCOME. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE IN LAW THE LEARNED CIT(A) ERRED IN ALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S. 5 4EC OF THE ACT WHICH IS NOT CORRECT. ITA NO 933/PN/2008 & C.O. NO.27/PN/2009 SHRI SHITALCHAND S. DAHALE A.Y.2004-05 PAGE OF 3 2 2. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS. 2 00 000/- AND THE CBDT HAD ISS UED THE CIRCULAR RESTRICTING THE MONETARY LIMIT FOR FILING THE APPEAL IN THE INCOME-TAX APPE LLATE TRIBUNAL WHICH IS RS. 2 LAKHS AND HENCE IN VIEW OF THE CBDT CIRCULAR NO. F. 279 /MISC. 142/2007/-IT DATED 15.5.2008 THIS APPEAL IS NOT MAINTAINABLE. ON THE OTHER HAND LD. D.R. OPPOSED THE CONTENTION OF LD. A.R. FOR ASSESSEE. 3. WE FIND THAT THIS ISSUE IS COVERED IN FAVOUR OF THE A SSESSEE BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASES OF CIT V/ S. PITHWA ENGINEERING WORKS 276 ITR 519 (BOM) AND CIT V/S. ZEOB Y. TOPIWALLA 284 ITR 379 (BOM.) WHEREIN IT IS HELD THAT THE MONETARY LIMIT FOR FILING APPEAL BEFORE THE TRIBUNAL IS R S. 2 LAKHS . IN THESE CASES THE HON'BLEBLE HIGH COURT HAS HELD AS UNDER : THIS COURT CAN VERY WELL TAKE JUDICIAL NOTICE OF THE FAC T THAT BY PASSAGE OF TIME MONEY VALUE HAS GONE DOWN THE COST O F LITIGATION EXPENSES HAS GONE UP THE ASSESSEES ON THE FILE OF THE DEPARTM ENTS HAVE INCREASED ; CONSEQUENTLY THE BURDEN ON THE DEPARTMENT HAS ALSO IN CREASED TO A TREMENDOUS EXTENT. THE CORRIDORS OF THE SUPERIOR COU RTS ARE CHOKED WITH HUGE PENDENCY OF CASES. IN THIS VIEW OF THE MATTER THE BOARD HAS RIGHTLY TAKEN A DECISION NOT TO FILE REFERENCES IF THE TAX EFFE CT IS LESS THAN RS. 2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN OUR VIEW THE BOARDS CIRCULAR DATED MARCH 27 2000 IS VERY MUCH APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED. T HE DEPARTMENT IS NOT JUSTIFIED IN PROCEEDING WITH THE OLD REFERENCES WHEREIN TH E TAX IMPACT IS MINIMAL. THUS THERE IS NO JUSTIFICATION TO PROCEED WITH D ECADES OLD REFERENCES HAVING NEGLIGIBLE TAX EFFECT. 7. THE COURT HELD THAT THE CIRCULAR WAS APPLICABLE EVEN T O OLD APPEALS WHICH WERE STILL UNDECIDED. WE RESPECTFULLY FOLLOW THE PREC EDENTS AND DISMISS THE APPEAL FILED BY THE DEPARTMENT. THE QUANTUM OF TAX EFFECT IN THIS CASE IS LESS THAN RS. 2 LAKHS. THE REVENUE HAS NOT BROUGHT ANY THING ON RECORD WITH FACTS AND CALCULATIONS TO ESTAB LISH THAT THE TAX EFFECT IS ABOVE RS 2 LAKHS. IT IS NOT THE CASE OF THE REVENUE THAT THERE E XISTS CONSOLIDATED ORDER WHICH MAY FALL IN THE ONLY CATEGORY OF EXEMPT CASES AS ADVOCATED BY THE JURISDICTIONAL HIGH COURTS JUDGMENT IN THE CASE OF MADHUKAR INAMDAR (318 ITR 14 9)(BOM). THIS JUDGMENT HAS ESTABLISHED A RATIO THAT THE CIRCULAR DT 15.5.2008 WOULD BE APPLICABLE TO CASES PENDING BEFORE THE COURT EITHER FOR ADMISSION OR FOR FINAL DISPOS AL AND IT IS BINDING ON THE REVENUE. FOLLOWING THE JUDGMENTS OF THE JURISDICTIONAL HIGH COURT CIT ED (SUPRA) WE DISMISS THIS APPEAL AS NOT MAINTAINABLE . 3. IN THE RESULT REVENUES APPEAL IS DISMISSED . ITA NO 933/PN/2008 & C.O. NO.27/PN/2009 SHRI SHITALCHAND S. DAHALE A.Y.2004-05 PAGE OF 3 3 C.O. NO. 27/PN/2009 BY THE ASSESSEE 4. ASSESSEE HAS FILED THE CROSS OBJECTION TO SUPPORT THE ORDER OF CIT(A). CONSIDERING OUR DECISION ON THE APPEAL OF THE REVENUE AS DISCUSSED IN THE PRECEDING PARAGRAPHS IN OUR OPINION THE ADJUDICATION OF THE I NSTANT C.O IS MERELY AN ACADEMIC EXERCISE. THEREFORE THE CO IS DISMISSED AS INFRUCTIOUS. 5. IN THE RESULT THE ASSESSEES C.O IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 13TH DAY OF AUGU ST 2010. SD/- SD/- (SHAILENDRA KUMAR YADAV JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE DATED THE 13TH AUGUST 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT- AURANGABAD 4. THE CIT(A)- AURANGABAD 4. THE D.R. B BENCH PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE