Tarun Mafatlal Shah, vs Assessee
- CitationI.T.A. No.2168/Mum/2012
Ratio decidendi
The rule this decision rests on
The Tribunal holds that, where the tax effect of the disputed issue is below the monetary limit prescribed in the CBDT's instruction, the Revenue's appeal is not maintainable before the Tribunal unless the case falls within one of the stated exceptions, and that such instructions apply to pending appeals as well. Consequentially, where the Revenue's appeal is dismissed as not maintainable, the assessee's cross-objection, being dependent upon that appeal, is dismissed as infructuous.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
आयकर अपील य अ धकरण, मुंबई यायपीठ "ई" मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI BEFORE S/SHRI VIJAY PAL RAO (JM) AND D. KARUNAKARA RAO, (AM) सव ी वजय पाल राव, या यक सद य एवं डी. क णाकर राव, लेखा सद य के सम
आयकर अपील सं./I.T.A. No2168/Mum/2012 ( नधारण वष / Assessment Year :2008-09)
Joint Commissioner of Income बनाम/ Shri Tarun Mafatlal Shah, tax- 15(1), Prop M/s Kalyan Metal Syndicate, Vs. Room No.104, 134/150, Shop No.1, Kika Street, Matru Mandir,1st floor, Gulalwadi, Tardeo Road, Mumbai-400004 Mumbai-400007 (अपीलाथ /Appellant) .. ( यथ / Respondent)
Cross-Objection No.77/Mum/2013 Arising out of I.T.A. No.2168/Mum/2012 ( नधारण वष / Assessment Year :2008-09)
Shri Tarun Mafatlal Shah, बनाम/ Joint Commissioner of Income tax-
Prop M/s Kalyan Metal 15(1), Vs. Syndicate, Room No.104, 134/150, Shop No.1, Kika Matru Mandir,1st floor, Street, Gulalwadi, Tardeo Road, Mumbai-400004 Mumbai-400007 (अपीलाथ /Appellant) .. ( यथ / Respondent)
थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. :AAIPS4102M
अपीलाथ ओर से / Revenue by Shri Neil Philip यथ क ओर से/ Assessee by Shri Jitendra Singh
सुनवाई क तार ख / Date of Hearing : 7.5.2015 घोषणा क तार ख /Date of Pronouncement : 20.5.2015
आदे श / O R D E R
PER VIJAY PAL RAO (JM) The Department has filed this appeal for assessment year 2008-09 against order of ld. CIT(A) dated 17.1.2012 on following grounds :
"1. On the facts and in the circumstances of the case and in law, the CIT(A) erred in holding that the disallowance of interest can not be sustained.
2 2 1 6 8 / Mu m / 2 0 1 2 a n d C O N o . 7 7 / M/ 2 0 1 3
2. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in directing the AO to treat the income from share trading of Rs.6,05,900/- shown as income under the head Long Term Capital Gain as such without appreciating the Volume of Transactions, time devoted by the assessee, frequency of transactions and motive of the assessee.
2. The assessee has also filed cross-objection against the same order on following grounds :
"1. The ld. CIT(A) erred in passing the order dated 17.1.2012 confirming the action of the AO in treating the "Short Term Capital Gain" amounting to Rs.47,91,011/- declared by the appellant as "Business Income" without appreciating the facts and circumstances of the case.
2. The ld. CIT(A) failed to appreciate that the appellant is an investor and not trader in shares. Therefore, treating the "Short Term Capital Gain" as business income is without any basis and hence, the same by be deleted"
3. Admittedly in this case the tax effect on the disputed issue is less than four lakhs. in view of CBDT Instruction No. 5/2014 (F.No.279/Misc.142/2007-ITJ(PT) dated 10.7.2014, the revenue can not file any appeal before the Tribunal, where the tax effect does not exceed the monetary limit of Rs. 4,00,000/- unless the case falls in the exceptions. The Hon'ble Bombay High Court time and again held that the instructions/circulars prescribing monetary limit for filing of the appeal will have retrospective effect and would be applicable on pending appeal also. In the case of CIT Vs. Shri Mahdhukar K. Inamdar (HUF) Thane in ITA No. 1021 to 1025 of 2008, vide order dated 02.10.2009, the Hon'ble High Court while interpreting the CBDT circular dated 15.05.2008, held that such circulars will be applicable on the old appeal also. Their Lordships have also referred to the earlier decisions of the Hon'ble Bombay High Court. In view of the aforesaid binding precedence of the Hon'ble Jurisdictional High Court, we hold that the appeal filed by the revenue in the present case is not maintainable as the tax effect is less than four lakhs. Accordingly the appeal filed by the Revenue is treated as dismissed. Since, the appeal filed by the revenue is 3 2 1 6 8 / Mu m / 2 0 1 2 a n d C O N o . 7 7 / M/ 2 0 1 3
dismissed as not maintainable, the cross-objection filed by the assessee also stands dismissed as infructuous.
4. In the result, the appeal filed by the Revenue is dismissed and the cross- objection filed by the assessee also stands dismissed as infructuous.
The above order was pronounced in the open court on 20th May, 2015. घोषणा खल ु े यायालय म दनांकः 20th May, 2015 को क गई ।
Sd sd (डी. क णाकर राव/D. KARUNAKARA RAO) ( वजय पाल राव/VIJAY PAL RAO) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai: 20th May, 2015. व. न.स./ SRL , Sr. PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकर आयु त(अपील) / The CIT(A)- concerned
4. आयकर आयु त / CIT concerned
5. वभागीय त न ध, आयकर अपील य अ धकरण, मंब ु ई/ DR, ITAT, Mumbai concerned
6. गाड फाईल / Guard file.
आदे शानुसार/ BY ORDER, True copy सहायक पंजीकार (Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai
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