Merely stating that the tax effect was low in an earlier order resulting in not filing of an appeal across the bar, without the same being specifically put in affidavit or in the appeal memo cannot be accepted. This manner of filing of appeals enables the revenue to pick and choose orders from which appeals are preferred and from which the appeals are not preferred rendering to a naught equal application of law on all.
HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO. 71 OF 2013
Commissioner of Income Tax
Vs.
Smt. Veena Gope Shroff
Mr. Abhay Ahuja, Advocates for Appellant.
Mr. Subhash Shetty, Advocate for Respondent.
CORAM : M.S. SANKLECHA & G.S. KULKARNI, JJ.
DATED : 27th JANUARY 2015
P.C.: 1. This appeal by the Revenue challenges the order dated 4th July 2012 passed by the Income Tax Appellate Tribunal (the ‘Tribunal). The impugned order has allowed the claim of the respondent asessee for exemption under Section 54 of the Income Tax Act, 1961 (the ‘Act’) in respect of exchange of old flat for a new constructed building. The impugned order of the tribunal has allowed relief by following its own decision in the case of J.K. Madan Vs. Income Tax Officer in ITA No. 6921/Mum/2010 on identical facts i.e. the same building and identical agreement as the respondent asseessee with the builder.
2. On inquiry, Mr. Ahuja, learned Counsel for the Revenue informs us that no appeal has been filed in the case of J.K. Madan(supra) in view of the low tax effect. However on reading of the order passed in the case of J.K. Madan (supra), it appears that the amount in dispute therein was a capital gain computed at Rs. 55.91 lakhs after deducting the indexed cost of acquisition from the sale consideration. Merely stating that the tax effect was low in an earlier order resulting in not filing of an appeal across the bar, without the same being specifically put in affidavit or in the appeal memo cannot be accepted. This manner of filing of appeals enables the revenue to pick and choose orders from which appeals are preferred and from which the appeals are not preferred rendering to a naught equal application of law on all. Thus unless in the appeal memo or in an affidavit filed before/at the hearing of the appeal for admission, the officer of Revenue should set out the reasons why the ratio of earlier orders is inapplicable in the present facts, the appeal itself will not be entertained. At this, Mr. Ahuja seeks four weeks time to take instructions and file an appropriate affidavit.
3. S.O. to 24th February 2015.
