Commissioner Of Income Tax Jaipur-Ii, Jaipur v. M/S Nisraj Real Estate & Export Pvt. Ltd., Plot

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR DB Income Tax Appeal No.630/2009 Commissioner of Income Tax Jaipur-II, Jaipur.vs. M/s Nisraj Real Estate & Export Pvt. Ltd., Plot No.2 C-96, Subhash marg, C-Scheme, Jaipur. 03.11.2016. Date of order : HON'BLE MR. JUSTICE K.S. JHAVERIHON'BLE MR. JUSTICE MAHENDRA MAHESHWARI Mr. Nikhil Simlote for the appellant.Mr. Mahendra Gargieya with Ms. Manisha Surana for the respondent. 1.By way of this appeal, the department has assailedthe judgment & order of the Tribunal whereby the Tribunalhas dismissed the appeal preferred by the revenue as wellas partly allowed the appeal preferred by the assessee. 2.The question of law which was framed by thedepartment is as under:- “i). Whether in the facts andcircumstances of the case the ITAT wasjustified in deleting the addition bytreating Long Term Capital Gain of Rs.4524258/ as bogus despite the fact thatevidence on record proved that the saidLong Term Capital Gain was notgenuine?” 3.Indisputably the tax effect as brought to our notice,is less than Rs.20 lac. 4.A Circular No.21/2015 has been issued by the CentralBoard of Direct Taxes dated 10.12.2015 in exercise of itspower u/sec. 268A (1) of the Income-tax Act 1961 insupersession of the Boards instruction No.5/2014dt.10.7.2014 regularising the monetary limits for filingthe appeal by the Revenue before the Tribunal, HighCourts and Apex Court with an object for reducinglitigation. Relevant para nos.3, 8, 9 and 10 reads adinfra :- “3.Henceforth, appeals/SLPs shall not be filed in caseswhere the tax effect does not exceed the monetary limitsgiven hereunder :- S.Appeals in Income-taxMonetary Limit (inNo.mattersRs.)1Before Appellate Tribunal10,00,000/-2Before High Court20,00,000/-3Before Supreme Court25,00,000/- It is clarified that an appeal should not be filed merelybecause the tax effect in a case exceeds the monetarylimits prescribed above. Filing of appeal in such casesis to be decided on merits of the case.4.xxxxxxxxx5.xxxxxxxxx6.xxxxxxxxx7.xxxxxxxxx8.Adverse judgments relating to the following issuesshould be contested on merits notwithstanding that thetax effect entailed is less than the monetary limitsspecified in para 3 above or there is no tax effect:(a) Where the Constitutional validity of theprovisions of an Act or Rule are under challenge, or(b)Where Board's order, Notification, Instructionor Circular has been held to be illegal or ultra vires,or(c)Where Revenue Audit objection in the case hasbeen accepted by the Department, or(d)Where the addition relates to undisclosedforeign assets/bank accounts. 9.The monetary limits specified in para 3 above shallnot apply to writ matters and direct tax matters otherthan Income tax. Filing of appeals in other Direct taxmatters shall continue to be governed by relevantprovisions of statute & rules. Further, filing of appealin cases of Income Tax, where the tax effect is notquantifiable or not involved, such as the case ofregistration of trusts or institutions under section 12 Aof the IT Act, 1961, shall not be governed by the limitsspecified in para 3 above and decision to file appeal insuch cases may be taken on merits of a particular case. 10.This instruction will apply retrospectively topending appeals and appeals to be filed henceforth inHigh Courts/Tribunals. Pending appeals below thespecified tax limits in para 3 above may be withdrawn/notpressed. Appeals before the Supreme Court will begoverned by the instructions on this subject, operativeat the time when such appeal was filed.” 5.The extract of the paragraphs referred to supra, 10.This instruction will apply retrospectively topending appeals and appeals to be filed henceforth inHigh Courts/Tribunals. Pending appeals below thespecified tax limits in para 3 above may be withdrawn/notpressed. Appeals before the Supreme Court will begoverned by the instructions on this subject, operativeat the time when such appeal was filed.” 5.The extract of the paragraphs referred to supra, clearly indicates that the limits specified in para 3 maynot apply to certain exceptions specified in para 8, atthe same time para nos.9 and 10 of the Circular if readconjointly, clearly envisages that the presentinstructions will apply retrospectively to all thepending appeals and appeals to be filed henceforth inHigh Courts/Tribunals, subject to exceptions where the tax effect even if is less than Rs.20 lac, can bepreferred in High Courts. 6.Taking note of the CBDT Circular dt. 10/12/2015 andthe tax effect which indisputably in the instant case isless than Rs.20 lac, much less than what has beenprescribed for filing appeals before the High Courts,deserves to be dismissed as not pressed. However, it ismade clear that the substantial questions of law raisedin the instant appeal, if any, are left open to beexamined in an appropriate proceeding, if arises infuture. At the same time we consider it appropriate toobserve that if the appeal falls in any of the exceptionsas referred to in the Circular dt. 10/12/2015, theRevenue will be at liberty to move an application forrecalling of the order if so advised.7.Accordingly, in the light of the CBDT Circular dated10.12.2015 the appeal stand dismissed as not pressed. (MAHENDRA MAHESHWARI), J. (K.S. JHAVERI), J. A.Sharma/104