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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: SHRI R.C. SHARMA (AM) & SHRI RAM LAL NEGI (JM)
PER RAM LAL NEGI, JM This appeal has been filed by the revenue against the order dated 17.10.2016 passed by the Commissioner of Income Tax (Appeals)-8 (for short ‘the CIT(A), Mumbai, for the assessment year 2012-13, whereby the Ld. CIT(A) has partly allowed the appeal filed by the assessee against the assessment order passed u/s 143 of the Income Tax Act, 1961 (for short the ‘Act’).
Aggrieved by the order of Ld. CIT (Appeals), the revenue has preferred this appeal before the Tribunal on the following effective grounds:- 1. “Whether on the facts and circumstances and in law, the Ld. CIT (A) was right in allowing the appeal of the assessee without appreciating the facts and circumstances that in this case the assessee has shown the asset as fixed asset in the preceeding year and therefore, at most, the assessee has converted the asset into Stock-In-Trade and hence, the provisions of section 45(20 is squarely applicable and consequently the conversion was required to be treated as deemed transfer u/s 50C and Short Assessment Year: 2012-13
Term Capital Gains were required to be worked out on basis of the Fair Market Value.
Whether on the facts and circumstances and in law, the Ld. CIT (A) has erred in allowing the treatment of proceeds on sale of the immovable property mentioned in Ground No. 1 above as business receipts whereas the same were partly in nature of Capital Gains and partly business receipts.”
At the outset, the Ld. counsel for the respondent/assessee pointed out that the tax effect of the relief granted by the Ld. Commissioner of Income Tax (Appeals) is below Rs.20 lacs and as per the CBDT Circular No. 3/2018, F. No. 279/Misc.142/2007-ITJ (Pt) dated 11th July, 2018 issued by Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Government of India limit fixed by the CBDT for filing the appeal before the ITAT is 20 lacs.
The Ld. Departmental Representative (DR) fairly conceded that this appeal is not maintainable in light of the above said CBDT Circular. The Ld. DR also did not point out that this appeal falls in any of the exceptions carved out in the above said circular.
We have gone through the order of the Ld. Commissioner of Income Tax (Appeals) and the grounds of appeals. We find that the tax effect in the above referred appeal is less than Rs. 20 lacs. Accordingly, we dismiss the aforesaid appeal filed by the Revenue. In the result, the appeal by the Revenue is dismissed. Order pronounced in the open court on 19th September, 2018. (R.C. SHARMA) JUDICIAL MEMBER म ुंबई Mumbai; दिन ुंक Dated: 19/09/2018
Alindra, PS Assessment Year: 2012-13
आदेश प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file.
आदेशानुसार/ BY ORDER, सत्य दपि प्रदि //// उि/सहायक िंजीकार (Dy./Asstt.