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Income Tax Appellate Tribunal, DELHI BENCH - ‘G’, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI ANADI N. MISHRA
This appeal has been filed by Revenue against order dated 1.11.2012 of Ld.
CIT(A) – XXX, New Delhi. The grounds of appeal are as under:
1. On the facts and circumstances of the case, the Ld. CIT(A) has erred in –
(i) Deleting the addition of Rs. 35,00,000/- on account of Long Term Capital Gains. (ii) The payment for acquisition of property in question was entirely made by the assessee and his wife was a mere joint holder for convenience. (iii) The ultimate beneficial owner of the property was the assessee only (iv) Entire cost of acquisition has been taken by the assessee for the purposes of calculation of indexed cost as well as for calculating the Long Term Capital Gain, (v) There is no base to divide the sale consideration equally between the assessee and his wife. (vi) The divorce between the assessee and his wife has taken place w.e.f. 30.11.2010 whereas the sale transaction (05-04-2007) has taken place much before that (vii) The assessee’s wife has also taken into account the cost of acquisition while calculating Capital Gains and hence, same cost of Page 1 of 4
Asstt. year 2008-09 ITO vs. Sandip Kudesia acquisition has been claimed both by husband and his wife, which is not in accordance with law. 2. The appellant craves the right to alter, amend, add or substitute the grounds of appeal.
When the appeal came up for hearing, the Ld. Authorised Representative of the respondent assessee contended at the outset that tax effect in this appeal was below Rs. 10 lakhs. He also drew our attention to CBDT Instruction No. 21/2015 dated 10th December, 2015 in which Revenue has been directed not to file any appeal in Income Tax Appellate Tribunal if tax effect is less than Rs. 10,00,000/-. The Ld. Authorised Representative contended that the appeal of the Revenue may be dismissed in the light of CBDT Circular (supra). The Ld. Departmental Representative appearing for Revenue agreed that the tax effect in this appeal filed by revenue is less than Rs. 10 lakhs. He also agreed that aforesaid instruction of CBDT dated 10.12.2015 was applicable in this appeal; and agreed that the appeal has become infructuous in view of this CBDT instruction.
We have heard both sides and we have also perused the materials on record. From the above, we find that the tax effect in Revenue’s Appeal is less than Rs.10,00,000/- . Therefore, this appeal is covered by Instruction No. 21/2015 dated 10th December, 2015 of CBDT, issued vide F.No. 279/Misc. 142/2007-ITJ (Pt.) . For the sake of convenience, the relevant portion of the aforesaid CBDT Circular is reproduced as under: “ ….. 3. Henceforth, appeals/ SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder: Monetary Limit S No Appeals in Income-tax matters (in Rs) 1 Before Appellate Tribunal 10,00,000/- 2 Before High Court 20,00,000/- 3 Before Supreme Court 25,00,000/-
Asstt. year 2008-09 ITO vs. Sandip Kudesia It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case. ….. …..
This instruction will apply retrospectively to pending appeals and appeals to be filed henceforth in High Courts/ Tribunals. Pending appeals below the specified tax limits in para 3 above may be withdrawn/ not pressed. Appeals before the Supreme Court will be governed by the instructions on this subject, operative at the time when such appeal was filed.” We are of the view that the aforesaid CBDT Instruction No. 21/2015 dated 10th 4. December, 2015 is applicable for the pending appeals filed by Revenue, as well as for the appeals to be filed by Revenue henceforth. In view of the aforesaid Instruction, therefore, Revenue should have withdrawn / not pressed the present Appeal, since the tax effect in the instant appeal is less than the prescribed limit of Rs. 10,00,000/- , specified in the aforesaid CBDT Instruction No. 21/2015 dated 10th December, 2015.
In view of the foregoing, we conclude that the appeal is inconsistent with the aforesaid CBDT Instruction No. 21/2015 dated 10th December, 2015; and hold that the appeal is, therefore, not maintainable. Accordingly, we dismiss the appeal in limine, appeal being not maintainable; without going into the merits. In the result, this appeal, filed by Revenue; stands dismissed. This was pronounced orally in the open court immediately after conclusion of hearing. This written order is pronounced in open court on 24/04/2017.