Income Tax Appellate Tribunal - Panji
Dcwt, Central Circle-1,, Nashik vs Vijay Arjundas Luthra, Nashik on 31 August, 2017
आयकर अपीऱीय अधिकरण पण
ु े न्यायपीठ "ए" पण
ु े में
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "A", PUNE
सुश्री सुषमा चावऱा, न्याययक सदस्य एवं श्री अयिऱ चतुवेदी, ऱेखा सदस्य के समक्ष
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM
ििकर अपीऱ सं. / WTA No.16/PUN/2013
यििाारण वषा / Assessment Year : 2006-07
The Asst. Commissioner of Income Tax,
Central Circle - 1, Nashik .... अऩीऱाथी/Appellant
Vs.
Vijay Arjundas Luthra,
'Anand Villa', Lokmanya Nagar,
12, Gangapur Road,
Nashik - 422002 .... प्रत्यथी / Respondent
PAN: AAHPL2981Q
अऩीऱाथी की ओर से / Appellant by : Shri Achal Sharma, Addl.CIT
प्रत्यथी की ओर से / Respondent by : Shri Kishore Phadke
सन
ु वाई की तारीख / घोषणा की तारीख /
Date of Hearing : 24.08.2017 Date of Pronouncement: 31.08.2017
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
The appeal filed by the Revenue is against the order of CWT(A)-I, Nashik, dated 20.06.2013 relating to assessment year 2006-07 against order passed under section 17 r.w.s. 16(3) of the Wealth-tax Act, 1957 (in short 'the Act').
2. The Revenue has raised the following grounds of appeal:-
2 WTA No.16/PUN/2013Vijay Arjundas Luthra
1. On the facts and in the circumstances of the case and in law, the Ld CWT(A) erred in deleting the addition made by the Assessing Officer/ without appreciating the fact Nashik Municipal corporation had granted conditional permission for development in respect of Land at Adgaon at Survey No.556,558/560 & 567 and therefore, the said land comes under the jurisdiction of the Nashik Municipal Corporation, and hence, it is an 'Urban land'.
2. On the facts and in the circumstances of the case and in law, the Ld CWT(A) erred in not appreciating the fact that the land at Kamatwade, bearing Survey No.989/2 is free for development whereas exemption from Wealth Tax is available only to such land, on which construction of a building is not permissible by any law.
3. On the facts and in the circumstances of the case and in law, the Ld CWT(A) erred in holding that 'undisputedly the land in question is agricultural land', in spite of the fact that, nowhere in the return of wealth, the assessee has declared these lands as 'agricultural'.
4. On the facts and in the circumstances of the case and in law, the Ld CWT(A) erred in holding the land in question to be 'agricultural land' without appreciating the fact that the return of wealth proves that the land is 'plotted and layout land'.
5. On the facts and in the circumstances of the case and in law, the Id CWT(A) erred in not deciding the issue whether the land was disputed, in terms of the Wealth Tax provisions, especially when the focal authority has given sanction to go ahead with the venture, subject to NOC from the Irrigation Department.
6. The appellant craves leave to add, alter, modify, delete and amend any of the grounds as per the circumstances of the case.
7. The appellant prays leave to adduce such further evidence to substantiate its case, as the occasion may demand.
3. The learned Authorized Representative for the assessee at the outset pointed out that the appeal of Revenue is not maintainable because of low tax effect. He further pointed out that the Tribunal in assessee's own case relating to various assessment years have already dismissed the appeals of Revenue on this count.
4. The learned Departmental Representative for the Revenue placed reliance on the order of Assessing Officer.
3 WTA No.16/PUN/2013Vijay Arjundas Luthra
5. We have heard the rival contentions and perused the record. The limited issue which arises in the present appeal is the maintainability of appeal filed by the Revenue on account of tax effect. The case of assessee is that where the CIT(A) has passed separate orders and since the tax effect on account of wealth tax demanded excluding the interest charged under section 17B of the Act is less than Rs.2 lakhs, then the said appeal is not maintainable, in view of CBDT Instructions issued from date to date. The assessee has filed on record the Annexure to the wealth tax assessment order passed, wherein wealth tax due on the assessed wealth has been computed as under:-
"Assessed Wealth Rs.1,79,94,680
Wealth Tax Rs. 1,64,947
Add Interest u/s 17B Rs. 87,219
--------------------
Total tax & Interest payable Rs. 2,52,368
Prepaid taxes Rs. NIL
Balance Payable Rs. 2,52,368
==========="
6. Similar issue of tax effect in wealth tax appeal being less than Rs.2 lakhs and appeal being not maintainable, arose in bunch of appeals in the case of assessee and its related parties and the Tribunal with lead order in ACWT Vs. Smt. Urmil Vijay Luthra in WTA Nos.08 & 09/PUN/2013, relating to assessment years 2004-05 & 2005-06 along with assessee's appeals for assessment years 2004-05, 2005-06 & 2007-08 in WTA Nos.14, 15 & 17/PUN/2013, vide order dated 26.05.2017 had dismissed the appeals filed by the Revenue on account of low tax effect holding as under:-
"5. We have heard the rival contentions and perused the record. The limited issue which has been raised in the present bunch of appeals is low tax effect, wherein in each of the year, the tax effect is less than Rs.2 lakhs. The Revenue has filed appeals against the orders of CWT(A), wherein the tax effect is less than Rs.2 lakhs and the plea of the assessee before us is that the said appeals are not maintainable in view of the CBDT Instructions issued from date to date, wherein while prescribing the monetary limits for filing the appeals before the Income Tax Appellate Tribunal, the CBDT had also instructed that such monetary limits would apply to other direct tax matters including wealth-4 WTA No.16/PUN/2013
Vijay Arjundas Luthra tax, gift-tax, estate duty, etc. The first such instruction is Instruction No.1979, dated 27.03.2000 which has been further approved vide CBDT Instruction No.05/2008, dated 15.05.2008.
6. Similar issue arose before the Chennai Bench of Tribunal in the ACIT Vs. Dr. M.P. Naresh Kumar (supra) and the appeals filed by the Revenue having low tax effect were dismissed holding as under:-
"4. We have perused the orders and also heard the contention of learned D.R. As per learned D.R., though the penalty amount involved was only a paltry sum of ` 13,874/-, the appeal was still maintainable for a reason that Instruction No.3/2011 dated 9.2.2011 prescribing monetary limits for filing appeals, applied only to income-tax matters. On going through Instruction No.3/2011, it is seen that at para 10 it is mentioned that monetary limits specified therein did not apply to direct tax matters other than income-tax. It is also mentioned that filing of appeals in other direct tax matters shall be governed by relevant provisions of statute and rules. Relevant para of Instruction No.3/2011 of 9.2.2011 is reproduced hereunder for brevity:-
"10. The monetary limits specified in para 3 above shall not apply to writ matters and direct tax matters other than Income- tax, filing of appeals in other direct tax matters shall continue to be governed by relevant provisions of statute and rules. Further, filing of appeal in cases of Income-tax, when the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12A of the I.T. Act, 1961, shall not be governed by the limits specified in para 3 above and decision to file appeal in such case may be taken on merits of a particular case."
5. Now the question before us - will the above para in the circular enable the Revenue to file an appeal in a wealth-tax matter, even when the tax effect is less than ` 3 lakhs mentioned in the said circular? The circular specifically mentions that it is in supersession of earlier Instruction No.5/2008 dated 15.5.2008. A look at CBDT Instruction No.5/2008 dated 15.5.2008 clearly shows that these instructions were issued in supersession of certain earlier instructions on the matter. The instructions which stood superseded by CBDT Instruction No.5/2008 is mentioned at the preamble of the said Instruction itself which reads as under:-
"Reference is invited to Board's instructions No.1979 dated 27.3.2000, No.1985 dated 29.6.2000, No.6 of 2003 dated 17.7.2003, No.19 of 2003 dated 23.12.2003, No.5/2004 dated 27.5.2004, No.2/2005 dated 24.10.2005 and No.5/2007 dated 16.7.2007, wherein monetary limits for filing departmental appeals (in Income-tax matters) and other conditions were specified, for filing appeals before Appellate Tribunals, High Courts and Supreme Court."
6. Of the many instructions that were superseded, what are relevant here are Instruction No.5/2007 dated 16.7.2007 and Instruction No.1979 dated 27.3.2000. Para 5 of Instruction No.1979 dated 27.3.2000 clearly mentions that the said instruction applied to other direct tax matters also including wealth-tax, gift-tax and Estate Duty. Para 4 of Instruction No.5 5 WTA No.16/PUN/2013 Vijay Arjundas Luthra of 2007 dated 16.7.2007 clearly mentions that except for changes in monetary limits mentioned therein, earlier Instruction No.1979 dated 27.3.2000 continued to apply. In our opinion, CBDT Instruction No.5/2008 which states that it supersedes circulars relating to monetary limits for filing departmental appeals in income-tax matters, will not effect the monetary limits for filing departmental appeals in relation to other direct tax matters mentioned at para 5 of Instruction No.1979 of 27.3.2000. From para 10 of Instruction No.3/2011 dated 9.2.2011, which we have reproduced at para 4 above, it is clear that with regard to appeals on other direct tax matters, viz. matters other than income-tax, they shall be governed by relevant provisions of statute and rules. CBDT instructions earlier issued, though superseded with regard to income-tax matters, were all issued under powers vested on it under Section 119 of Income-tax Act, 1961. Thus, when it is clearly mentioned in Instruction No.3/2011 that for matters relating to direct tax other than income-tax, relevant provisions of statute and rules will continue to apply, it would by implication means that earlier instructions insofar as it related to matters other than income-tax would continue to apply. By virtue of Instruction No.5/2007 dated 16.7.2007, the monetary limit for filing of appeals before this Tribunal was increased ` 1 lakh. By virtue of Instruction No.1979 dated 27.3.2000, the monetary limits mentioned applied also to wealth-tax, gift-tax and Estate Duty matters. In our opinion, when these instructions are read together, despite the supersession effected by Instruction No.3/2011 dated 9.2.2011 of earlier Instruction No.5/2008 dated 15.5.2008 and supersession of instructions mentioned at para 5 above by us, through Instruction No.5/2008 dated 15.5.2008, the earlier instructions insofar as it applied to wealth-tax, gifttax and Estate Duty matter would continue in force. For taking the view that the Instruction No.5/2008 as also Instruction No.3/2011 will apply to wealth-tax matter also, we are fortified by the decision of Hon'ble Kerala High Court in the case of CWT v. John L. Chackola in WTA No.108 of 2009 dated 7th December, 2009. Though in the said case, it was decided that the appeal was indeed maintainable, it was so ruled for a reason that the appeal was filed prior to the date of Instruction No.5/2008 coming into effect and prior to that date limits mentioned in Instruction No.2/2005 only applied. Nevertheless, it is clear from this decision of Hon'ble Kerala High Court that the said Instructions did apply to wealth-tax matters also.
7. As for the issue whether monetary limits will also apply to penalty appeals, it is clearly mentioned in para 4 of Instruction No.3/2011 dated 9.2.2011 itself that in case of penalty orders, tax effect would mean quantum of penalty deleted or reduced."
7. Following the same parity of reasoning, we hold that in the present bunch of appeals filed by the Revenue, where the tax effect is below Rs.2 lakhs and applying Instruction No.05/2008, dated 15.05.2008 issued by the CBDT, the aforesaid appeals filed by the Revenue are not maintainable and hence, the same are dismissed."
7. Following the same parity of reasoning, we hold that the present appeal filed by the Revenue is not maintainable, hence the same is dismissed for low 6 WTA No.16/PUN/2013 Vijay Arjundas Luthra tax effect. We are not adjudicating the issue on merits in this regard. The grounds of appeal raised by the Revenue are thus, dismissed.
8. In the result, appeal of Revenue is dismissed.
Order pronounced on this 31st day of August, 2017.
Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA)
ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
ऩण
ु े / Pune; ददनाांक Dated : 31st August, 2017.
GCVSR
आदे श की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to :
1. अऩीऱाथी / The Appellant;
2. प्रत्यथी / The Respondent;
3. The CWT(A)-I, Nashik;
4. The CWT-(Central), Nashik;
5. ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे "ए" / DR 'A', ITAT, Pune;
6. गार्ड पाईऱ / Guard file.
ु ार/ BY ORDER, आदे शािस सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩण ु े / ITAT, Pune