Shri Touquire A. Siddique, Baroda V. The Dy.CIT Circle -8, Baroda

CO 165/AHD/2013

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2272 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-05-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 26-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , ! BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ I.T.A. NO.1218/AHD/2013 ( / ASSESSMENT YEAR : 2004-05) THEDCIT CIRCLE-8 BARODA / VS. SHRI TOUQUIRE A SIDDIQUE B-17 M BASERA DUPLEX TANDALJA ROAD BARODA 390 020 & ./ ./ PAN/GIR NO. : AEPPS 0089 G ( &) / APPELLANT ) .. ( *+&) / RESPONDENT ) AND CROSS OBJECTION NO.165/AHD/2013 AY 2004-05 (IN ITA NO.1218/AHD/2013 AY 2004-05) SHRI TOUQUIRE A SIDDIQUE, BARODA / VS. THE DCIT, CIRCLE-8 BARODA (CROSS OBJECTOR) .. ( *+&) / RESPONDENT ) ASSESSEE BY : WRITTEN SUBMISSION REVENUE BY : SHRI NARENDRA SINGH, SR.DR , - / DATE OF HEARING 24/05/2016 ./01 - / DATE OF PRONOUNCEMENT 24/05/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-VI, BARODA DAT ED 15/02/2013 ITA NO.1218/AHD/2013 (BY REVENUE) AND CO NO.165/AHD/2013 (BY ASSESSEE) DCIT VS. SHRI TOUQUIRE A.SIDDIQUE, BARODA ASST.YEAR 2004-05 - 2 - FOR THE ASSESSMENT YEAR 2004-05 AND THE ASSESSEE IS IN CROSS OBJECTION THEREOF. 2. THE GROUNDS RAISED BY THE REVENUE IN THE PRESENT APPEAL READ AS UNDER:- 1. ON FACTS AND IN THE CIRCUMSTANCES AND IN LAW, THE CIT(A) HAS ERRED IN ANNULLING THE ASSESSMENT AND HOLDING THAT THE ASSESSMENT ORDER WAS BAD IN LAW WITHOUT APPRECIATIN G THE FACT THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD AND THE RE-ASSESSMENT PROCEEDINGS WERE NOT VITIATED BEYOND CORRECTION. IT IS WELL SETTLED PROPOSITION OF LAW THAT THE POWER OF CIT(A) ARE ANALOGOUS AND CO-TERMINUS WITH THAT OF T HE ASSESSING OFFICER AND THEREFORE THE CIT(A) WAS DUTY BOUND TO AFFORD OPPORTUNITY TO THE ASSESSEE AND THE ASSESSING OFFIC ER TO CURE THE DEFECTS RELATED TO THE NATURAL JUSTICE. THIS GETS SUPPORT FROM THE RATIO LAID DOWN BY HONBLE SUPREME COURT IN THE CAS E OF INCOME-TAX OFFICER V/S.M.PIRAI CHOODI REPORTED IN 2 0 TAXMANN.COM 733 [2012] 2. ON FACTS AND IN THE CIRCUMSTANCES AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING COMMISSION RS.19,92,045 BY ANNULL ING THE ASSESSMENT BY DISREGARDING THE FACTS MENTIONED BY T HE ASSESSING OFFICER IN PARA 5.3 (B) OF THE ASSESSMENT ORDER, TH AT THE ASSESSEE HAD ACCEDED TO THE PROPOSED ADDITION OF COMMISSION @ 3% OF THE TOTAL JOB WORK. HENCE, THE FACTUM RECEIPT OF C OMMISSION WAS NOT TOTALLY DENIED BY THE ASSESSEE. 2.1. IN CROSS OBJECTION, THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS:- 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED DCIT HAS ERRED IN STATING THAT THE RESPONDENT HAS A CCEDED TO THE ADDITION OF COMMISSION @ 3% OF THE TOTAL JOB WORK. ITA NO.1218/AHD/2013 (BY REVENUE) AND CO NO.165/AHD/2013 (BY ASSESSEE) DCIT VS. SHRI TOUQUIRE A.SIDDIQUE, BARODA ASST.YEAR 2004-05 - 3 - 2. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED DCIT HAS ERRED IN NOT NOTING THAT THE SAID SUBMISSION DATED DECEMBER 30,2011 WAS MADE BY THE RESPONDENT WITHOUT PREJUDIC E TO THE RESPONDENTS CONTENTION THAT NO SUCH COMMISSION WAS EVER RECEIVED BY THE RESPONDENT. 3. THE RESPONDENT CRAVES LEAVE TO ADD, ALTER, AME ND, DELETE, MODIFY OR WITHDRAW ALL OR ANY GROUND OR GROUNDS OF OBJECTI ONS HEREIN AND TO SUBMIT SUCH STATEMENTS, DOCUMENTS AND P[APER S AS MAY BE CONSIDERED NECESSARY EITHER AT OR BEFORE THE APPEAL HEARING. 3. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF ASSESSEE, HOWEVER, WRITTEN SUBMISSION DATED 21/05/2016 HAVE BEEN FILED, WHEREIN IT IS SUBMITTED THAT THE APPEAL OF THE REVENUE IS N OT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT AND, THEREFORE, BE DISMIS SED AND THEREFORE THE CROSS OBJECTION OF THE ASSESSEE IS ALSO NOT PRESSED . THE WORKING OF TAX EFFECT WAS ALSO WORKED OUT IN THE LETTER. THE LD. S R.D.R. FAIRLY ADMITTED THAT THE TAX EFFECT ON THE IMPUGNED ADDITIONS IS LE SS THAN THE LIMIT PRESCRIBED BY THE CBDT CIRCULAR OF 10/12/2015 BEARI NG NO. 21 OF 2015. 4. WE HAVE HEARD THE LD. SR.D.R. AND PERUSED WRITTE N SUBMISSION AS WELL AS THE MATERIAL ON RECORD. ON PERUSING THE GRO UNDS OF APPEAL RAISED BY THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED B Y THE AGGREGATING ADDITION OF RS.19,92,045/- THE TAX EFFECT OF WHICH IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10/12/2015 (CIRCULAR NO. 21 OF 2015), NO DEPA RTMENT APPEALS ARE ITA NO.1218/AHD/2013 (BY REVENUE) AND CO NO.165/AHD/2013 (BY ASSESSEE) DCIT VS. SHRI TOUQUIRE A.SIDDIQUE, BARODA ASST.YEAR 2004-05 - 4 - TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFO RE THE INCOME TAX TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS. 10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PENDING APPEALS. IN THE PRESENT CASE, SINCE IT IS A N UNDISPUTED FACT THAT ON THE ADDITIONS WHICH ARE IN DISPUTE, THE TAX EFFECT IS LESS THAN RS. 10 LACS AND IN THE ABSENCE OF ANY MATERIAL ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXEMPTIONS SPECIFIED IN CLAUSE (8) OF THE AFORESAID CBDT CIRCU LAR, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INST RUCTIONS OF THE AFORESAID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. IN SUCH CIRCUMSTANCES, W E DISMISS THE APPEAL OF REVENUE WITHOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. HOWEVER, IN CASE THERE IS ANY ERROR IN THE COMPUTAT ION OF THE TAX EFFECT INVOLVED OR IF FOR ANY REASON, THE AFORESAID CBDT C IRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN TO THE REVENUE TO SEEK REVIVAL OF THE APPEAL. IN SUCH CIRCUMSTANCES, WE DISMISS THE APPEAL OF REV ENUE WITHOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. 5. AS FAR AS THE CROSS OBJECTION NO.165/AHD/2013 FO R AY 2004-05 FILED BY THE ASSESSEE IS CONCERNED, AS PER WRITTEN SUBMISSION DATED 21/05/2016 PLACED ON RECORD THROUGH HIS AUTHORIZED REPRESENTATIVE, IT IS SUBMITTED THAT SINCE THE REVENUES APPEAL(SUPRA) I S NOT MAINTAINABLE ON ITA NO.1218/AHD/2013 (BY REVENUE) AND CO NO.165/AHD/2013 (BY ASSESSEE) DCIT VS. SHRI TOUQUIRE A.SIDDIQUE, BARODA ASST.YEAR 2004-05 - 5 - ACCOUNT OF LOW TAX EFFECT, THE CROSS OBJECTION FIL ED BY THE ASSESSEE IS NOT PRESSED. IN VIEW OF THE AFORESAID SUBMISSION, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED AS NOT PRESSED. 6. IN THE RESULT, REVENUES APPEAL AND CROSS OBJECT ION FILED BY THE ASSESSEE ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 24/05/2016 SD/- SD/- ( ) ( ) (SHAILENDRA KUMAR YADAV) ( ANIL CHATUR VEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 24/ 05 /2016 4.., .../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. &) / THE APPELLANT 2. *+&) / THE RESPONDENT. 3. 567 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-VI, BARODA 5. 9:; *67 , 67 1 , 5 / DR, ITAT, AHMEDABAD 6. ;= >, / GUARD FILE. / BY ORDER, +9 * //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD