Commissioner Of Income Tax - Xchennai v. Shri.ebrahim Akbar Mohamed

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.9.2019 CORAM THE HON'BLE DR.JUSTICE VINEET KOTHARIANDTHE HON'BLE MR.JUSTICE C.SARAVANAN Tax Case (Appeal) No.274 of 2009 Commissioner of Income Tax - XChennai.... Appellant Vs. Shri.Ebrahim Akbar Mohamed ... Respondent Tax Case Appeal filed under Section 260A of the Income TaxAct, 1961 against the order of the Income Tax AppellateTribunal, 'B' Bench, Chennai, dated 17.9.2004 made in ITANo.2252/Mds/97, against the order of the Commissioner of Income Tax(Appeals)-V,Chennai-34 dated 21/08/1997 and made in ITANo.105/97-98 for the Assessment Year 1996-97, against the order of the Assistant Commissioner of IncomeTax, (Asst-1), Circle-I, Chennai-34, dated 27/03/1997 and madein PAN/GIR No.6294-A for the Assessment Year 1996-97. For Appellant : Mr.M.Swaminathan Senior Standing Counsel assisted by Ms.V.Pushpa, Jr. Standing Counsel J U D G M E N T (Delivered by DR.VINEET KOTHARI,J) This Tax Case Appeal has been filed by the Revenue, callingin question the correctness of the order passed by the IncomeTax Appellate Tribunal, 'B' Bench, Chennai, dated 17.9.2004 madein ITA No.2252/Mds/97, for the Assessment Year 1996-97, byraising the following substantial questions of law: "i) Whether on the facts and in the circumstances ofthe case, the Income Tax Appellate Tribunal wasright in holding that the order of the Commissioner https://hcservices.ecourts.gov.in/hcservices/ of Income Tax (Appeals) rectifying the originalorder wherein repayment of loan on voluntarilycreated mortgage by the assessee was allowablededuction from the sale consideration whilecomputing the capital gains was not correct, on theground that the Supreme Court's decision in 227 ITR240 relied by the CIT(Appeals) in the order underSection 154 did not obliterate the pre-existingdebate on the issue?ii) Whether on the facts and in the circumstances ofthe case, the Income Tax Appellate Tribunal wasright in not observing that the Supreme Court in 227ITR 240 has only restated the pre-existing law andhas clearly held that in the case of mortgagecreated by the assessee himself no deduction couldbe allowed and, therefore, the assessee'sapplication under Section 256(2) of the Act, in thatcase did not raise an "arguable question of law" andthe said application was rightly rejected by theHigh Court?" 2. When the matter is taken up for hearing, learned SeniorStanding Counsel brought to our notice the Circular instructionissued by the Central Board of Direct Taxes vide CircularNo.17/2019 dated 8th August 2019, wherein, it is stipulated thatappeals shall not be filed/pursued by the Department before theHigh Court in cases where the tax effect does not exceedRs.1,00,00,000/- (Rupees One Crore). 3. In the instant case, the tax effect is said to be lessthan the monetary limit imposed and therefore, the Appeal filedby the Revenue is dismissed, as withdrawn, keeping open thesubstantial questions of law for determination in appropriatecases. No costs. Sd/- Assistant Registrar ssk.To //True Copy// Sub Assistant Registrar 1. Commissioner of Income Tax – X, Chennai. 2. Income Tax Appellate Tribunal, 'B' Bench, Chennai. 'B' Bench, Chennai. 3. The Assistant Commissioner of Income Tax, Circle-I(Asst.I)Income Tax, Circle-I(Asst.I) Chennai. 4.The Commissioner of Income Tax (Appeals-V), Chennai-34. Chennai-34. TC(A) No.274 of 2009sv[co]srg 24/10/2019