Commissioner Of Income Tax,Central I, Chennai v. V.n.devadoss (Huf)

IN THE HIGH COURT OF JUDICATURE AT MADRAS Coram THE HONOURABLE MR. JUSTICE M.M.SUNDRESHandTHE HONOURABLE MR. JUSTICE N.ANAND VENKATESH T.C.(A). No.828 of 2010 Commissioner of Income Tax,Central I, Chennai. .. Appellant vs. V.N.Devadoss (HUF),No.333 (Old No.208),Poonamallee High Road,Aminjikarai, Chennai - 29. .. Respondent Appeal filed under Section 260A of the Income Tax Act, 1961against the order of the Income Tax Appellate Tribunal "A"Bench, Chennai dated 12.03.2010 passed in I.T.A. No.388/Mds/2009.Against the order dated 20.11.2008 made in ITA No.330/05-06on the file of the Commissioner of Income Tax (Appeals)-XII,Chennai.Against the order, dated 16.02.2006, made in AAAHV25963 onthe file of the Assistant Commissioner of Income Tax, CircleXIII, Chennai 34. For Appellant:Mr.M.SwaminathanFor Respondent :Mr.C.KasirajanJUDGMENT (Judgment of the Court was delivered by M.M.SUNDRESH, J.) The Revenue has filed this appeal by formulating thefollowing substantial questions of law in respect of theassessment year 2003-2004: https://hcservices.ecourts.gov.in/hcservices/ "(1)Whether on the facts and in the circumstancesof the case, the Income Tax Appellate Tribunal wasright in law in holding that the treatment of incomefrom sale of the lands in question as business incomewas arbitrary and unjustified on the part of theRevenue and in setting aside the orders of the lowerauthorities holding that the income from sale of theland should be treated as 'Capital Gains'? (2)Whether on the facts and in the circumstancesof the case, the Income Tax Appellate Tribunal wasright in coming to the conclusions mentioned in thepreceding question disregarding all the relevantevidence discussed in the orders of the AssessingOfficer and Commissioner of Income Tax (Appeals) andrelying on irrelevant material like the filing ofWealth Tax Returns by the HUF?" 2.Heard the learned counsel appearing for the appellant andthe learned counsel appearing for the respondent. 3.Learned counsel appearing for the appellant submits thatthe issue involved in this appeal viz., low tax effect hasalready been considered by this Court in T.C.A. No.1528 of 2007on 06.06.2018 and the following order has been passed: "3. It may not be necessary for us to decide thesubstantial question of law framed for consideration,on account of the low tax effect in this appeal. Thisissue was considered by us in the case of Commissionerof Income Tax vs. N.Meenakshisundaram in T.C.(A)Nos.868 & 869 of 2008 dated 23.04.2018, by taking noteof the Circular Instructions issued by the CentralBoard of Direct Taxes (CBDT) and also taking note ofthe submissions of the Revenue, the relevant portionsof which are quoted hereunder: "10. An argument was advanced by the learnedSenior Standing Counsel for the Revenue that thecircular can have effect only, while filing theappeal and not while hearing of the appeal andwould have no impact on the appeals, which areadmitted and pending. However, in the Circularissued in the year, 2015, it has been made clearthat, it will apply to pending appeals as well.In respect of the earlier circulars, it would berelevant to take note of the decision of theHon'ble Supreme Court in Mathew M. Thomas VsCommissioner Of Income-Tax [(1999) (III) ELT 4 SC]wherein, the Hon'ble Supreme Court, while considering the effect of Circular No.445, dated16.05.1986, pointed out that Circular No. 455dated 16.5.1986 issued by the C.B.D.T. isapplicable to all pending proceedings which havenot attained finality under Section 269 I of theAct as defined in the explanation to the saidSection. ........................... considering the effect of Circular No.445, dated16.05.1986, pointed out that Circular No. 455dated 16.5.1986 issued by the C.B.D.T. isapplicable to all pending proceedings which havenot attained finality under Section 269 I of theAct as defined in the explanation to the saidSection. ........................... 14. Therefore, the Circular has to beunderstood as part of the litigation policy of theGovernment of India to reduce the litigation andto bring down the number of Appeals, which arepending before the Court and also ensure that theAppeals are not preferred by the Departmentwithout proper examination of the case onmerits. ........... 15. As per the Circular/Instruction issued byCBDT, the present Appeal should be not pressed bythe Revenue. If, at the time of filing of theAppeal, decision has to be taken whether to filean Appeal or not and the Authority by dueapplication of mind and bearing the two caveatslaid down by the Hon'ble Supreme Court, in SuryaHerbal Ltd., case (supra) should take a decision.In cases, where, the Appeals are pending beforethe Court, appropriate Officer has to take adecision. In the instant case, it appears that,no such specific instruction is issued toMr.M.Swaminathan, the learned Senior StandingCounsel to withdraw the Appeal, nor, can we compelthe learned counsel to withdraw the Appeal. 16. Having held that the Circular issued byCBDT is applicable to the case on hand and the taxeffect being less than the threshold limitprescribed in the Circular, we dismiss the presentAppeal by applying the law laid down by theHon'ble Supreme Court, in Surya Herbal Ltd., case(supra), as the two caveats mentioned thereunderdoes not arise in the instant case.” 4.By applying the above decision, we dismiss thistax case (appeal) on the ground of low tax effect andin terms of the above referred decision, leave thesubstantial question of law, which has been framed forconsideration. No costs." 4.In such view of the matter and in view of the circularissued by the Central Board Direct Taxes in Circular No.21/2015dated 10.12.2015, this tax case appeal is dismissed on theground of low tax effect, leaving the substantial questions oflaw open, which have been framed for consideration. No costs. Sd/-Assistant Registrar(CS-VII) //True Copy// Sub Assistant RegistrarmmiToThe Register Income Tax Appellate Tribunal,"A" Bench, Chennai.2. The Commissioner of Income Tax (Appeals), xii, chennai.3. The Assistant Commissioner of Income Tax,Circle XIII, Chennai 34.+1cc to Mr.M.SWAMINATHAN, Advocate, S.R.No.47937+1cc to Mr.C.KASIRAJAN, Advocate, S.R.No. 48203 T.C.(A).No.828 of 2010GP(CO)TR(09/08/2018)