ITO,WARD-7(1), KOLKATA, KOLKATA vs. M/S. AGARWALA PROPERTIES LTD, KOLKATA

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ITA 1318/KOL/2012Status: DisposedITAT Kolkata30 October 2015AY 2007-083 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that the appeal filed by the Revenue was not maintainable as the tax effect was below the monetary limit prescribed by CBDT Circular No. 3/2011. The Circulars issued by the CBDT are binding on the Revenue.

What were the facts?

The Revenue appealed against an order of the CIT(Appeals) directing the AO to accept the assessee's rental value instead of the estimated notional value. The appeal was filed before the ITAT.

What were the issues?

Whether the appeal filed by the Revenue is maintainable before the ITAT given the tax effect and the CBDT's monetary limits for filing appeals.

Which sections of the Income-tax Act were involved?

Section 22

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

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Income Tax Appellate Tribunal, “C” BENCH, KOLKATA

Before: Shri M. Balaganesh, & Shri S.S. Viswanethra Ravi

This appeal is filed by the revenue having aggrieved by the order dated 01-06- 2012 passed by the CIT(Appeals)-VIII, Kolkata in Appeal No.407/CIT(A)- VIII/Kol/09-10 for the assessment year 2007-08.

2.

In this appeal the revenue has taken the following ground :- 1) That on the facts and circumstances of the case and in law, the ld. CIT(A)-VIII, Kolkata has erred in directing the AO to accept the rental value of Rs.14,34,678/- as shown by the appellant/assessee of the said properties as against the estimated notional value of Rs.23,78,688/- determined by the AO during the course of assessment which is perverse and is totally unlawful and unjustifiable. 2) That on the facts and circumstances of the case and in law the ld.CIT(A)-VIII, Kolkata has erred in not considering the treatment of house property income, in spite of fulfilling the conditions of Section 22 of the Income Tax Act, 1961. He has also chosen neither to discuss the case- law/s referred by the Assessing Officer nor has the one relied upon by the assessee, thereby, making the deletion perverse, unlawful and unjustified. 3) That on the facts and circumstances of the case and in law, the ld.CIT(A)-VIII, Kolkata erred in directing to allow set off the income from 1 T.E M/s. Agarwala Properties Ltd

House Property with the loss from the business thereby, making this order unlawful and unjustified.”

3.

At the time of hearing, the ld. Counsel for the assessee submitted that the tax effect in this appeal is below Rs. 3 lakhs and filed computation of tax effect and served a copy of the same to ld.DR. The ld.DR appearing on behalf of the revenue conceded that the tax effect in this appeal is below Rs. 3 lakhs. The Central Board of Direct Taxes (CBDT) in their Circular CBDT instruction No.3/2011 (F.No. 279/MISE/142/2007-ITJ) dated 9.2.2011 has enhanced the limits for filing of appeal before the Tribunal to Rs. 3 lakhs. This appeal by the revenue has been filed before the Tribunal on 12-09-2012 and, therefore, the monetary limits for filing appeal before the Tribunal has to be adhered.

4.

Admittedly, the tax payable in respect of grounds of appeal by the Department is less than Rs. 3 lakhs and as per revised Instruction of the CBDT No.3 dated 9.2.2011 wherein the CBDT has revised the filing limits of appeal(s) filed before the Tribunal, High Court and Supreme Court as under:- “Before the Income Tax Appellate Tribunal : Rs. 3 lakhs Appeals u/s. 260A of the I.T Act 1961 Before the Hon’ble High Court : Rs. 10 lakhs, and Before the Hon’ble Supreme Court : Rs. 25 lakhs “

Since in the present case the above revised instruction is well applicable, in our opinion the Revenue’s appeal is not maintainable in view of the said Circular of the CBDT.

5.

It is a settled law that the Circulars issued by the CBDT are binding on the Revenue. This position was confirmed by the Hon’ble Apex Court in the case of Commissioner of Customs Vs. Indian Oil Corporation reported in 267 ITR 272(SC), wherein their Lordships examined the earlier decisions of the Hon’ble Apex Court with regard to binding nature of the Circular and laid down that when a circular issued by 2 T.E M/s. Agarwala Properties Ltd the Board remains in operation then the Revenue is bound by it and cannot be allowed to plead that it is not valid or that it is contrary to the terms of the statute. This appeal under consideration has certainly been filed contrary to the Circular issued by the CBDT Instruction No.3 dated 9-2-2011.

6.

In view of the above, we hold that the present appeal filed by the Department, against the impinged order of the ld.CIT(A) is contrary to the policy decision of the Department and as such the appeal filed by the Department is dismissed in limine.

7.

In the result, the appeal filed by the Revenue is dismissed.

THIS ORDER IS PRONOUNCED IN OPEN COURT ON 30 / 10/2015

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