Ita/388/2009 Of The Commissioner Of Income Tax v. Sri Prakash B Nichani

IN THR HIGH COURT OF KARNATAKA AT BENGALURU DATEKD THIS THR 1 DAY OF FEBRUARY 2016 PRESENT THR HON’BLE MR.JUSTICE JAYANT PATEL AND THR HON’BLE MRS..JUSTICEHK S SUJAT ITA NO. 3388/200 BBRHIWEE 1.The Commissioner of Income-tax, Central Circle,C.R.Building, Queens Road,Bangalore|C.R.Building, Queens Road,Bangalore| a2The Deputy Commissioner of Income-Tax, Central Circle-1(3), C.R.Building, Queens Road,BangaloreQueens Road,Bangalore .. Appellant (By Sri.K.V.Aravind, Adv) AN): 1.Shri.Prakash B.Nichani, 9-2, “K” Block, Golden Orchid,Lavelle Rod,Bangalore.Lavelle Rod,Bangalore. since died represented by LR’s © ?)Nisha.P.Nichan1W/o Prakash.B.Nichani|Aged 40 years| 3.ohivang!| D/o Prakash.B.Nichani Aged 109 yearsSince Minor.Represented by natural guardian ©Smt.Nisha.P.Nichani 4Ayesha. D/o Prakash.B.Nichani Aged 13 years|Since Minor.Represented by natural guardianSmt.Nisha.P.Nichani ...Respondents. (By Sri. A.Shankar & M.Lava, Advocates) This ITA is filed Under Section 260-A of I.T.Act, 1961.arising out of Order dated 27.02.2009 passed in ITA.No./735/Bang/2007, tor the Assessment year 1998-99,praying formulate the substantial questions of lawstated therein and to allow the appeal and set aside theOrderpassedby theITATBangalore|in.ITANo.735/Bang/2007, dated 27.02.2009 and confirm theorder passed by the Deputy Commissioner Of IncomeTax, circle-1(3), Bangalore, in the interest of justiceand equity. This Appeal coming on for Preliminary Hearing this day,JAYANT PATEL J., delivered the following: JUDGMENT The present appeal has been admitted initially on) two substantial questions of law which reads as under:| 1.Whether the Tribunal was correctin holding that the order passed bythe Assessing Officer was neitherprejudicial to the interest of theTEVENUCnorerroneousandtherefore the exercise jurisdictionunder section 2YV63 xotf the holdingotherwisethat|the.exemption claimed under sectiono4 of the Act of Rs.1,24,94,485/- inrespect of Cambridge Road propertypurchased in the year 1997 forRs.48,90,000 /-TORs.7,03,600/-|(towards stamp duty) and incurredexpenditureoT Rs. /6.44lakhstowards the house, which was soldon 25.7.2002 for Rs.60 lakhs hadbeen allowed without examiningthe same?|in holding that the order passed bythe Assessing Officer was neitherprejudicial to the interest of theTEVENUCnorerroneousandtherefore the exercise jurisdictionunder section 2YV63 xotf the holdingotherwisethat|the.exemption claimed under sectiono4 of the Act of Rs.1,24,94,485/- inrespect of Cambridge Road propertypurchased in the year 1997 forRs.48,90,000 /-TORs.7,03,600/-|(towards stamp duty) and incurredexpenditureoT Rs. /6.44lakhstowards the house, which was soldon 25.7.2002 for Rs.60 lakhs hadbeen allowed without examiningthe same?| 2.Whether the Tribunal was correctin proceeding to set aside the orderof the Appellate Commissioner bycondoning the delay of 331 dayswithout examining the reasons forsuch.condonation andconsequently recorded a _ perversfinding?in proceeding to set aside the orderof the Appellate Commissioner bycondoning the delay of 331 dayswithout examining the reasons forsuch.condonation andconsequently recorded a _ perversfinding? So|faraS|question|no.?1S|concerned,learnedcounselMr.Aravind fairly conceded that the same is already covered by anearlier decision of this Court in ITA.399 dated 18.8.2015. The same'§would not survive. Hence, we need.not examine the second question. oD When we address the issue raised on! question no.1, it appears from the assessment order acopy whereof is produced at Annexure-D that thesubject — Tax on Capital gains is of Rs.13,66,308/-. So|faraS|question|no.?1S|concerned,learnedcounselMr.Aravind fairly conceded that the same is already covered by anearlier decision of this Court in ITA.399 dated 18.8.2015. The same'§would not survive. Hence, we need.not examine the second question. oD When we address the issue raised on! question no.1, it appears from the assessment order acopy whereof is produced at Annexure-D that thesubject — Tax on Capital gains is of Rs.13,66,308/-. 3.|It is undisputed position that, the circularhas been issued by CBDT (Central Board of DirectTaxes) vide No.21 of 2015 whereby it has beencommunicated to all Principal Commissioners of IncomeTax and the other Officers that if the appeal involves taxeffect not exceeding 20 lakhs so far as matters beforethe High Courts are concerned, such appeals need notbe filed. At paragraph-10 of the aforesaid circular, it hasbeen provided as under: “10. This instruction will apply retrospectively|to pending appeals and appeals to be filedhenceforth in High Courts/Tribunals.|Pending appeals below the specified taxto pending appeals and appeals to be filedhenceforth in High Courts/Tribunals.|Pending appeals below the specified tax limits in para 3 above may be withdrawn /not pressed. Appeals before the SupremeCourt will be governed by the instructionson this subject, operative at the timewhen such appeal was filed.” 4The atoresaid makes it clear that the' circular/instruction is to apply to all pending appealsbefore the High Courts too. 5.|The subject matter involved in the appeal isthat of Rs.13,66,308/-. In any case it is below theaforesaid specified limit of Rs.2O lakhs. Hence, thepresent appeal cannot be maintained in view of abovereferred circular of the CBDT itselt. 6. Hence, the appeal is disposed of accordingly. ok/- Sd/-. JUDGE| Sd/-.JUDGE.