Appeal to High Court Where the department had accepted the decision of the Court for the Appellate tribunals on an issue and had not appealed against it then a subsequent decision following the earlier decision could not be challenged

BOMBAY HIGH COURT

No.- Income Tax Appeal No. 735 of 2014

Commissioner of Income Tax ......................................................................Appellant.
. V
Greenfield Hotels & Estates Pvt. Ltd............................................................Respondent

M. S. Sanklecha And S. C. Gupte, JJ.

Dated.- October 24, 2016

Appearances

Ashok Kotangale, a/w. Ms. Padma Divakar, for the Appellant
Sanjiv M. Shah, i/b. Sanjay B. Sawant, for the Respondent

Section 260A of the Income Tax Act, 1961 — Appeal — Appeal to High Court — Where the department had accepted the decision of the Court for the Appellate tribunals on an issue and had not appealed against it, then a subsequent decision following the earlier decision could not be challenged. No question of law arises as the department had not shown that there were only distinguishing features either in facts or in law in the present appeal from that which arose in the earlier decision of the appellate Tribunal which was not appealed against — Commissioner of Income Tax vs. Greenfield Hotels and Estates P Ltd.

JUDGMENT

The judgment of the court was delivered by

This appeal under Section 260A of the Income Tax Act, 1961 (“the Act”) challenges the order dated 23 October 2013 passed by the Income Tax Appellate Tribunal (“Tribunal”). The impugned order relates to Assessment Year 2007-08.

2. The Revenue urges the following question of law for our consideration :
“Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in upholding the order of the CIT(A) in deleting the addition of Long Term Capital Gain of Rs. 80,58,000/on the ground that provisions of section 50C of the IT Act, 1961 were not applicable to transfer of land and building, being a leasehold property?”

3. The impugned order of the Tribunal has dismissed the Revenue's appeal from the order dated 15 June 2012 passed by the Commissioner of Income Tax (Appeals). The issue before the Tribunal was whether Section 50C of the Act would be applicable to transfer of leasehold rights in land and buildings. The impugned order of the Tribunal followed its decision in Atul G. Puranik vs. ITO (ITA No.3051/Mum/2010) decided on 13 May 2011 which held that Section 50C is not applicable while computing capital gains on transfer of leasehold rights in land and buildings.

4. Mr. Kotangale, learned Counsel for the Revenue, states that the Revenue has not preferred any appeal against the decision of the Tribunal in the case of Atul Puranik (supra). Thus, it could be inferred that it has been accepted. Our Court in DIT vs. Credit Agricole Indosuez 377 ITR 102 (dealing with Tribunal order) and the Apex Court in UOI vs. Satish P. Shah 249 ITR 221 (dealing with High Court order) has laid down the salutary principle that where the Revenue has accepted the decision of the Court/Tribunal on an issue of law and not challenged it in appeal, then a subsequent decision following the earlier decision cannot be challenged. Further, it is not the Revenue's casebefore us that there are any distinguishing features either in facts or in law in the present appeal from that arising in the case of Atul Puranik (supra).

5. In the above view, the question as framed by the Revenue does not give rise to any substantial question of law. Thus, not entertained.

6. Appeals dismissed. No order as to costs.