Friends Oil & Chemical Terminals Pvt. Ltd., Gandhidham V. The Dy. Commissioner of Income Tax, Central Circle-2(3), Ahmedabad

CO 154/AHD/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7135 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 06-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: K C THAKKER
• Keywords: Competent authority; Tax effect

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD - BENCH C BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ IT(SS)A NO.210, 211, 212 AND 213/AHD/2016 / ASSTT. YEAR: 2009-2010, 2010-2011, 2011-12, AND 201 2-13 WITH CO NO.154/AHD/2016 IN IT(SS)A.NO.213/AHD/2016 [ASSTT.YEAR 2012-13] DCIT, CENT.CIR.2(3) AHMEDABAD. VS. FRIENDS OIL & CHEMICAL TERMINALS P.LTD. MAITRI BHAWAN, PLOT NO.18 SECTOR 8 GANDHIDHAM-KUTCH 370 201. / (APPELLANT) / (RESPONDENT) REVENUE BY : MS.NIDHI SRIVASTAVA, CIT-DR ASSESSEE BY : SHRI K.C. THAKKER, AR ! / DATE OF HEARING : 28/09/2018 '#$ ! / DATE OF PRONOUNCEMENT: 28 /09/2018 %& / O R D E R PER BENCH: PRESENT FOUR APPEALS ARE DIRECTED AT THE INSTANCE O F REVENUE AGAINST COMMON ORDER OF THE LD.CIT(A)-12, AHMEDABAD DATED 4.4.2016 PASSED FOR THE ASSTT.YEARS 2009-10 TO 2012-13. ON RECEIPT OF NOTICE IN ALL THESE APPEALS, THE ASSESSEE HAS FILED CO BEARIN G NOS.151, 152, 153 AND 154/AHD/2016. IT(SS)A NO.210/AHD/2016 & OTHERS DCIT VS. FRIENDS OIL & CHEMICAL TERMINAL P.LTD. 2 2. PERUSAL OF GROUNDS OF APPEAL TAKEN BY THE REVENU E WOULD REVEAL THAT TAX EFFECT BY VIRTUE OF RELIEF GIVEN BY THE LD .CIT(A) IN EACH ASSESSMENT YEAR IS BELOW RS.20 LAKHS, HENCE, APPEAL S OF THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO.3 OF 2018 DATED 11.7.2018, WHICH HAS BEEN MADE APPLICABLE ON PENDIN G APPEALS ALSO. 3. THE LD.COUNSEL FOR THE ASSESSEE, ON THE STRENGTH OF ORDER PASSED IN SA NO.41 TO 45/AHD/2014 IN THE CASE OF VEDANTA V S. ADIT CONTENDED THAT IN THE PRESENT CASE A SEARCH UPON THE ASSESSEE WAS CARRIED OUT ON 15.6.2011. ALL THESE CASES HAVE BEEN CENTRALISED F OR ASSESSMENTS AND ASSIGNED JURISDICTION TO DCIT, CIR.2(3), AHMEDABAD. HE HAS PASSED ASSESSMENT ORDERS ON 20.11.2014 UNDER SECTION 153A( 1)(B) OF THE ACT. DISSATISFIED WITH THESE ASSESSMENT ORDERS, THE ASSE SSEE FILED APPEALS IN ALL THESE ASSESSMENT YEARS BEFORE THE LD.CIT(A). T HE LD.CIT(A)-12, AHMEDABAD HAS A TERRITORIAL JURISDICTION OVER THE A SSESSEE, AND HE HAS DECIDED ALL THE APPEALS BY WAY OF IMPUGNED COMMON O RDER ON 4.11.2016. DISSATISFIED WITH THIS ORDER, REVENUE H AS FILED PRESENT APPEALS. HOWEVER, AFTER FILING ALL THE APPEALS, JU RISDICTION OVER THE ASSESSEE HAS BEEN AGAIN TRANSFERRED TO GANDHIDHAM, AS ASSESSEE IS ORDINARILY RESIDING IN KUTCH. ORIGINALLY, REGISTER ED OFFICE OF THE COMPANY IS AT MAITRI BHAVAN, PLOT NO.18, SECTOR 8, GANDHIDH AM, KUTCH. SINCE THE ASSESSEE WAS EARLIER ASSESSED AT GANDHIDHAM, TE RRITORIAL JURISDICTION OF THE TRIBUNAL OVER GANDHIDHAM VESTED WITH ITAT, R AJKOT. HE ALSO POINTED OUT THAT IN ALL THESE YEARS AND IN SOME OF OTHER YEARS, REGULAR ASSESSMENTS WERE MADE WHEREIN DISPUTE BETWEEN THE A SSESSEE AND THE REVENUE AROSE ON CERTAIN ISSUES AND APPEALS AGAINST REGULAR ASSESSMENT ORDERS ARE STILL PENDING BEFORE THE ITAT , RAJKOT. HE FURTHER POINTED OUT THAT AFTER TRANSFER OF JURISDICTION, AP PEALS IN OTHER CASES OF IT(SS)A NO.210/AHD/2016 & OTHERS DCIT VS. FRIENDS OIL & CHEMICAL TERMINAL P.LTD. 3 THIS GROUP HAVE BEEN FILED BY THE DEPARTMENT BEFORE THE ITAT, RAJKOT WHICH ARE PENDING. ON THE STRENGTH OF THE DETAILS, HE CONTENDED THAT THESE APPEALS BE TRANSFERRED TO ITAT, RAJKOT. THE LD.COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT EVEN IF THESE APPEA LS ARE NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT INVOLVED THEREIN, THE CO FILED BY THE ASSESSEE IN ACCORDANCE WITH LAW WILL HAVE TO BE DECIDED ON MERIT. 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. PRIMA FACIE ON PERUSAL OF THE RECORD WOULD INDICATE THAT THE TAX BY VIRTUE OF RELIEF GIVEN BY THE LD.CIT(A) IS BELOW RS.20 LAKHS, HENCE, THE APPEALS ARE NOT MAINTAINABL E IN VIEW OF CBDT CIRCULAR. THEREFORE, ONCE THE APPEALS ARE REQUIRED TO BE DISMISSED EVEN IF TRANSFERRED FROM, ITAT, AHMEDABAD TO ITAT RAJKOT . WE DO NOT SEE ANY REASONS TO DEVOTE MUCH ENERGY FOR TRANSFER OF A PPEALS FROM HERE TO THERE. COURSE OPEN FOR THE ITAT WOULD BE THAT AT T HE TIME OF PRESENTATION OF THESE APPEALS, THEY COULD BE RETURN ED TO THE PRESENTING PERSON FOR FILING AT APPROPRIATE JURISDICTION OR TH EY BE TRANSFERRED TO ITAT, RAJKOT. IN VIEW OF THE ABOVE FACTS, WE ARE O F THE VIEW THAT THESE APPEALS, AS SUCH, ARE NOT MAINTAINABLE, BECAUSE OF LOW TAX EFFECT INVOLVED IN THEM. THEREFORE, THESE ARE DISMISSED. HOWEVER, TAKING ABUNDANT CARE, WE OBSERVE THAT OUR ABOVE FINDING WI LL BE SUBJECTED TO THE CONDITIONS THAT IN CASE IT EMERGE OUT ON RE-VER IFICATION OF RECORD THAT TAX EFFECT IS MORE OR THESE APPEALS FALL IN SO ME OF THE EXCEPTIONS PROVIDED IN CIRCULAR, THEN REVENUE WILL BE AT LIBER TY TO FILE APPEALS BEFORE THE ITAT, RAJKOT OR TO APPLY FOR RECALL OF T HIS ORDER. AS SUCH THESE APPEALS ARE NOT MAINTAINABLE AND DISMISSED AC CORDINGLY. IT(SS)A NO.210/AHD/2016 & OTHERS DCIT VS. FRIENDS OIL & CHEMICAL TERMINAL P.LTD. 4 5. AS FAR AS COS. OF THE ASSESSEE ARE CONCERNED, SU B-SECTION (4) OF SECTION 253 OF THE INCOME TAX ACT, 1961 READS AS UN DER: [(4) THE ASSESSING OFFICER OR THE ASSESSEE, AS THE CASE MAY BE, ON RECEIPT OF NOTICE THAT AN APPEAL AGAINST THE ORD ER OF THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) OR THE ASSESSING OFFICER IN PURSUANCE OF THE DIRECTIONS OF THE DISPUTE RESOLUTION PANEL HAS BEEN PREFERRED UNDER SUB-SECTION (1) OR SUB-SECTION (2) OR SUB-SEC TION (2A) BY THE OTHER PARTY, MAY, NOTWITHSTANDING THAT HE MAY N OT HAVE APPEALED AGAINST SUCH ORDER OR ANY PART THEREOF; WI THIN THIRTY DAYS OF THE RECEIPT OF THE NOTICE, FILE A MEMORANDU M OF CROSS- OBJECTIONS, VERIFIED IN THE PRESCRIBED MANNER, AGAI NST ANY PART OF THE ORDER OF THE ASSESSING OFFICER (IN PURSUANCE OF THE DIRECTIONS OF THE DISPUTE RESOLUTION PANEL) OR DEPUTY COMMISSI ONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS), AND SUCH MEMORANDUM SHALL BE DISPOSED OF BY THE APP ELLATE TRIBUNAL AS IF IT WERE AN APPEAL PRESENTED WITHIN T HE TIME SPECIFIED IN SUB-SECTION (3) OR SUB-SECTION (3A). 6. A PERUSAL OF THE ABOVE SECTION WOULD INDICATE TH AT ON RECEIPT OF NOTICE, IF A RESPONDENT FILES CO WITHIN 30 DAYS AGA INST ANY PART OF CIT(A)S ORDER, THEN SUCH CO WILL BE REGISTERED AND TREATED AS IF APPEAL FILED BY AN ASSESSEE. THUS, EVEN IF THE APPEALS AR E BEING DISMISSED, BEING NOT MAINTAINABLE SUBSEQUENTLY BUT THE CO FILE D IN SUCH APPEALS WHEN THEY WERE VALID, THEN SUCH COS ARE DESERVE TO BE DECIDED ON MERIT. THE LD.COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING CONTENDED THAT AS FAR CO NO.154/AHD/2016 IN IT(SS)A.NO.213/AH D/2016 IS CONCERNED THE ASSESSEE DOES NOT PRESS THIS CO. HEN CE, THIS CO IS ALSO DISMISSED. IT(SS)A NO.210/AHD/2016 & OTHERS DCIT VS. FRIENDS OIL & CHEMICAL TERMINAL P.LTD. 5 7. AS FAR AS REMAINING THREE COS. ARE CONCERNED, RE GISTRY IS DIRECTED TO PLACE THESE COS. BEFORE COMPETENT AUTHORITY FOR APPROPRIATE ORDERS FOR TRANSFERRING THEM TO ITAT, RAJKOT. 8. IN THE RESULT, APPEALS OF THE REVENUE AND CO OF THE ASSESSEE IN THE ASSTT.YEAR 2012-13 ARE DISMISSED. OTHER COS I. E. CO NO.151, 152 AND 153/AHD/2016 ARE ADJOURNED SINE DIE . ORDER PRONOUNCED IN THE COURT ON 28 TH SEPTEMBER, 2018 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER