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ITO 5(1)(1),Aayakar Bhavan, R.No.670,New Marine Lines,Mumbai-20. VS. Athena Insurance & Reinsurance Brokers P Ltd., 112-C Wing, Mittal Tower, Vidhan Bhavan Marg, Nariman Point,Mumbai-21.
July, 16th 2012
                      IN THE INCOME TAX APPELLATE TRIBUNAL,
                              MUMBAI BENCH `A' BENCH

           BEFORE SHRI G.E.VEERABHADRAPPA (PRESIDENT) AND
                  SHRI B.R.MITTAL(JUDICIAL MEMBER)

                               ITA No.4527/Mum/2008
                             Assessment Year: 2004 -05

ITO 5(1)(1),                              Athena Insurance & Reinsurance Brokers P
Aayakar Bhavan, R.No.670,                 Ltd., 112-C Wing, Mittal Tower, Vidhan
New Marine Lines,                         Bhavan Marg, Nariman Point,
Mumbai-20.                            Vs. Mumbai-21.

                                           PA No.AADCA 0655 P


                                           (Respondent)



                            Appellant by : Shri C.G.K. Nair
                            Respondent by: Shri Chetan Shah

Date of hearing:             5.7.2012
Date of pronouncement:        13. 7.2012




                                    ORDER

Per B.R.Mittal, JM:

       The department has filed this appeal for assessment year 2004-05 against order
dated 1.5.2008 of ld CIT(A)-V, Mumbai on the following grounds:
       "1. On the facts and in the circumstances of the case and in law, ld CIT(A) has
       erred in deleting the addition of provision made for diminution of value of
       investment of Rs.1,36,411 for computing the book profit u/s.115JB without
       appreciating that the same provision is for loss and not for liability.

       2. On the facts and in the circumstances of the case and in law, ld CIT(A) has
       erred in deleting the disallowance of loss arising on purchase/sale of shares of
       Rs.1,76,000.

       3. On the facts and in the circumstances of the case and in law, ld CIT(A) has
       erred in directing the AO to tax the gains arising on share trading to assess
       under "business income" instead of "capital gains" assessed by the AO.
                                            2                           ITA No.4527/Mum/2008
                                                                     Assessment Year: 2004 -05


       4. On the facts and in the circumstances of the case and in law, ld CIT(A) has
       erred in directing the AO to tax interest in case under "business income" instead
       of income from other sources assessed by the AO."


2.     At the very outset the learned Counsel for the assessee submitted that the
tax effect involved in this appeal is below the prescribed limit of Rs.2 lakhs for
filing the appeal before the Tribunal by the Revenue as per the CBDT Instruction
No.2105 dt.24.1.2005. The learned Departmental Representative did not dispute
the contention of ld A.R.


3.     We have heard ld representatives of parties and perused the orders of
authorities below.    We observe from the grounds of appeal raised by the department
that the tax effect involved in this appeal is les than Rs 2 lakhs as per the limit
prescribed by the CBDT for filing of appeal by the Revenue before the Tribunal. In such
a situation the appeal filed in contravention of such limit cannot be sustained. This view
is duly supported by the decision in the case of ACIT Vs. Satish Chandra, 10 SOT 383.
Similar view has been taken by the Bombay High Court in the case of CIT Vs. Camco
Colour Co. 254 ITR 565, wherein it has been held that the tax effect involved in the
appeal filed by the Revenue being less than the monetary limit as prescribed in Board
Circular, the same is not maintainable. Respectfully following the precedents, we dismiss
the appeal filed by the Revenue as not maintainable.





4.     In the result, appeal filed by department is dismissed.


       Pronounced in the open court on          13th   July , 2012



                  Sd/-                                           Sd/-
         (G.E.VEERABHADRAPPA)                               (B.R. MITTAL)
               PRESIDENT                                   Judicial Member



Mumbai, Dated        13th    July , 2012
Parida
                                       3                      ITA No.4527/Mum/2008
                                                           Assessment Year: 2004 -05


Copy to:
1. The appellant
2. The respondent
3. Commissioner of Income Tax (Appeals),V, Mumbai
4. Commissioner of Income Tax, MV-V , Mumbai
5. Departmental Representative, Bench `A' Mumbai

//TRUE COPY//                                       BY ORDER


                                        ASSTT. REGISTRAR, ITAT, MUMBAI
 
 
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