What did the Tribunal hold?

The Tribunal held that the Department's appeal was not maintainable as the tax effect was below the monetary limit prescribed by CBDT Circular No. 21/2015. The Tribunal directed the Department to withdraw or not press the appeal.

The Department appealed the CIT(A)'s order allowing a Short Term Capital Loss (STCL) claim. The Department argued that the assessee had not filed a revised return to claim the STCL, only a revised computation during assessment.

What were the issues?

Whether the Department's appeal is maintainable before the Tribunal given the tax effect is below the prescribed monetary limit as per CBDT circular.

ACIT vs Sh. Vivek Setia, New Delhi | ITAT Delhi 2016

Income Tax Appellate Tribunal, DELHI BENCH ‘H’, NEW DELHI

Before: SHRI H.S. SIDHU & SHRI L.P. SAHU

For Respondent: DR Assessee by : Sh. Deepak Virmani, CA

Date of Hearing : 11-02-2016 Date of Order : 07-03-2016 ORDER PER H.S. SIDHU, J.M. The Department has filed this Appeal against the impugned Order dated 16.04.2013 of Ld. CIT(A)-XXV, New Delhi pertaining to assessment year 2009-10 on the following grounds:-

“On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in : 1. Allowing the STCL of Rs. 10,70,126/- as against STCG of Rs. 30,88,357/- whereas the fact that the assessee had neither claimed

STCL of Rs. 10,71,126/- in his original return nor he had filed the revised return, the assessee had just filed the revised computation at the time of assessment proceedings;

2. Allowing the STCL of Rs. 10,71,126/- as the AO has rightly

disallowed the STCL in the absence of revised return in view of judicial judgment of Hon’ble Supreme Court in the case of Goetz

(India) vs. CIT (2006).

The appellant craves the right to alter, amend, add or substitute the grounds of appeal.”

On going through the grounds of appeal

, we find that the tax effect in the Revenue’s Appeal is less than Rs.10,00,000/-, therefore, the Department’s Appeal is not maintainable, in view of the Circular No. 21/2015 dated 10th December, 2015 issued vide F.No. 279/Misc. 142/2007-ITJ (Pt.) by the CBDT. For the sake of convenience, the relevant para nos. 3 & 10 of the aforesaid CBDT’s Circular are 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/- 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.

10.

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.”

It is not in dispute that the Board’s instruction or directions issued to the income-tax authorities are binding on those authorities, therefore, the Department should have withdrawn/ not pressed the present Appeal, in view of the aforesaid instructions since the tax effect in the instant Appeal is less than the amount of Rs. 10 lacs, prescribed in the above said CBDT’s Instructions.

Keeping in view the CBDT Instruction No. 21/2015 dated 10th December, 2015, we are of the view that the Revenue should have withdrawn/ not pressed the instant appeal before the Tribunal. We are also of the view that the said Instructions are applicable for the pending appeals and appeals to be filed henceforth in Tribunal. Accordingly, the Revenue’s Appeal is dismissed.

In the result, Appeal filed by the Revenue Stands dismissed.

ACIT, NEW DELHI vs. SH. VIVEK SETIA, NEW DELHI

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