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Income Tax Appellate Tribunal, MUMBAI “I” BENCH, MUMBAI
Before: SHRI SHAILENDRA KUMAR YADAV, JUDICIAL & SHRI RAJESH KUMAR.
This appeal has been filed by Revenue against the order of Commissioner of Income-Tax (Appeals)-24, Mumbai, dated 29.12.2010 for A.Y. 2007-08 on following grounds:
“(1) (i) On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the AO to treat the income to the tune of Rs. 29,03,791/- on sale of shares held for more than 60 days as Short Term Capital Gains and Rs. 4,34,371/- on sale of shares held for less than 60 days as business income as against the entire income of Rs. 33,38,162/- earned by the assessee on sale of shares treated by the AO as business income.
(ii) While doing so, the Ld. CIT(A) failed to appreciate that nature of receipt whether capital gain or business has to be considered having regard to total activity and intention of the assessee. This has been made amply clear by the Hon'ble ITAT, F-Bench, Mumbai in its decision in the case of V. Nagesh in 1TA No. 5410/Mum/2008 dated 24.09.2009.
(iii) The Ld. CIT(A) has further failed to appreciate that volume of transactions, frequency of transactions and continuity and regularity of transactions as also lack of compelling circumstances for immediate sales, made to amply clear that the motive behind the transactions was to earn quick profits and thus the same constituted the transactions in the nature of trade. (3) The appellant prays that the order of CIT(A) on the above ground(s) be set aside and that of the Assessment Officer be restored.”
Before us, at the outset, ld. Authorized Representative submitted that the present appeal of the Revenue needs to be A.Y. 07-08 [ACIT vs. Shri Anand Gupta (HUF)] Page 3 dismissed on account of low tax effect in view of the CBDT Circular No.21 of 2015 dated 10.12.2015. The ld. Departmental Representative fairly admitted that the tax effect is less than the limit prescribed by the aforesaid CBDT Circular.
2.1 We have heard the ld. D.R. and perused the material on record. On perusing the grounds of appeal raised by the Revenue, we prima-facie find that the tax effect in this appeal is below Rs.10 lacs. As per the announcement of Central Board of Direct Taxes (CBDT) dated 10.12.2015 (Circular No. 21 of 2015), no Department appeals are 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 present case, since it is an undisputed fact that on the additions 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 limit prescribed by the instructions of the aforesaid CBDT Circular would be applicable to the present appeal of the Department and 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 any reason, the aforesaid CBDT Circular is not applicable, it would be open to the Revenue to seek revival of A.Y. 07-08 [ACIT vs. Shri Anand Gupta (HUF)] Page 4 the appeal. In such circumstances, we dismiss the appeals of Revenue without expressing any opinion on merits of the case.
In the result, the appeal of Revenue is dismissed.
Pronounced in the open Court on this the 22nd day of June, 2016.
Sd/- Sd/- (RAJESH KUMAR) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai: Dated 22/06/2016 True Copy S.K.SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार, आयकर अपील�य अ�धकरण, मुंबई ।