Gautam Freight Pvt. Ltd., Gandhidham V. The Dy. Commissioner of Income Tax, Central Circle-2(3), Ahmedabad

CO 180/AHD/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0638 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 08-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C THAKER CROSSOBJECTOR
• Keywords: Depreciation; Audit objection; Tax effect

Judgement Text

ITSSA NOS. 145 TO 147/AHD/2016 DCIT VS GAUTAM FREIGHT PVT LTD ASSESSMENT YEAR: 2006-07 TO 2008-09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND MAHAVIR PRASAD JM] IT(SS)A NOS.145, 146 & 147/AHD/2016 & CO NOS. 179, 180 & 181/AHD/2016 ASSESSMENT YEAR: 2006-07, 2007-08 & 2008-09 RESPECTIVELY DY. COMMISSIONER OF INCOME-TAX .............. .... APPELLANT CENTRAL CIRCLE-2(3), AHMEDABAD VS. GAUTAM FREIGHT P. LTD. ........................... RESPONDENT & PLOT NO. 24-26, WARD 10-C, CROSS-OBJECTOR GIDC AREA, GANDHIDHAM, KUTCH-370 201 [PAN : AAACG 7804 M] APPEARANCES BY: SUBHASH BAINS, FOR THE APPELLANT K.C. THAKER, FOR THE RESPONDENT/CROSS-OBJECTOR DATE OF CONCLUDING THE HEARING : 28.09.2018 DATE OF PRONOUNCING THE ORDER : 28.09.2018 O R D E R PER PRAMOD KUMAR, AM: 1. THESE THREE APPEALS BY THE REVENUE AND THE CROSS -OBJECTIONS THEREOF BY THE ASSESSEE ARE DIRECTED AGAINST A COMMON ORDER DATED 28 TH JANUARY 2016 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-12, AH MEDABAD FOR ASSESSMENT YEARS 2006-07, 2007-08 AND 2008-09. 2. THE GRIEVANCES RAISED BY THE ASSESSING OFFICER I N THE RESPECTIVE ASSESSMENT YEARS ARE AS FOLLOWS: AY 2006-07 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE ADDITI ON OF RS.5,01,683/- ON ACCOUNT OF INTEREST PAYMENT U/S 36(1)(III) THOUGH THE ASSES SEE HAD MADE INTEREST FREE ADVANCES OUT OF INTEREST BEARING FUNDS. AY 2007-08 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE AD DITION OF RS.22,44,744/- ON ACCOUNT OF INTEREST PAYMENT U/S 36(1)(III) THOUGH T HE ASSESSEE HAD MADE INTEREST FREE ADVANCES OUT OF INTEREST BEARING FUNDS. ITSSA NOS. 145 TO 147/AHD/2016 DCIT VS GAUTAM FREIGHT PVT LTD ASSESSMENT YEAR: 2006-07 TO 2008-09 PAGE 2 OF 3 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE AD DITION OF RS.9,60,000/- BEING DISALLOWANCE OF DEPRECIATION ON LAND COST OF WINDMI LL. AY 2008-09 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE AD DITION OF RS.38,42,010/- ON ACCOUNT OF INTEREST PAYMENT U/S 36(1)(III) THOUGH T HE ASSESSEE HAD MADE INTEREST FREE ADVANCES OUT OF INTEREST BEARING FUNDS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE AD DITION OF RS1,92,000/- BEING DISALLOWANCE OF DEPRECIATION ON LAND COST OF WINDMI LL. 3. WHEN THESE APPEALS WERE CALLED OUT FOR HEARING, LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ACCEPTED THAT THE TAX EFFECT IN THESE THREE CASES IS LESS THAN RS.20 LACS EACH; AND, THEREFORE, THESE APPEALS ARE NOT MA INTAINABLE. HE, HOWEVER, ALSO POINTED OUT THAT SINCE THE ASSESSING OFFICER HAVING JURISDICTION TO ASSESS THE ASSESSEE IS NOW LOCATED IN THE JURISDICTION OF RAJKOT BENCH, THE CORRECT JURISDICTION FOR THESE APPEALS WILL BE RAJKOT BENCH. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THERE IS, IN VIEW OF THE LOW TAX EFFECT INVOLVED, NO POIN T IN SEEKING TRANSFER OF THESE APPEALS TO RAJKOT BENCH AS THESE APPEALS ARE NO LONGER MAINTAI NABLE. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT IT IS INDEED TRUE THAT THE CORRECT JURISDICTION TO HEAR THESE APPEALS WILL BE RAJKOT B ENCH AS THE ASSESSING OFFICER IS NOW SITUATED IN THE JURISDICTION OF RAJKOT BENCH; BUT, SINCE THE APPEALS ARE NOT MAINTAINABLE IN VIEW OF THE LOW TAX EFFECT, EVEN THE TRANSFER OF THESE APPEALS TO RAJKOT BENCH WILL NOT SERVE ANY PURPOSE. HE FURTHER SUBMITS THAT IN CASE DEPARTMENTS APPEALS ARE NOT BEING PURSUED, HE WOULD NOT LIKE TO PRESS THE CROSS-OBJEC TIONS EITHER. HE THUS PRAYED THAT THE APPEALS OF THE DEPARTMENT AS ALSO THE CROSS-OBJECTI ONS FILED BY THE ASSESSEE MAY BE TREATED AS NOT PRESSED. 5. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE FIND THAT PRIMA-FACIE THESE APPEALS OF THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF THE RECENT CBDT CIRCULAR NO. 3/2018 IN F.NO.279/MIS C. 142/2007-ITJ (PT) DATED 11 TH JULY, 2018, VIDE WHICH IT HAS BEEN DECIDED BY THE B OARD THAT NO DEPARTMENTAL APPEALS SHOULD BE FILED BEFORE THE TRIBUNAL IF THE TAX EFFE CT BY VIRTUE OF THE COMMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS. 20 LACS. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (10) OF THE INSTRUCTIONS WHEREIN IT HAS B EEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, WHERE THE CONSTITUTIONAL VALIDIT Y OF THE PROVISIONS OF AN ACT/RULE IS UNDER CHALLENGE OR WHERE BOARDS ORDER, NOTIFICATIO N, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT OR WHERE THE ADDITION RELATES TO UND ISCLOSED FOREIGN ASSETS/BANK ACCOUNTS ETC. WE FIND THAT THE PRESENT CASE DOES N OT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX EFFECT IN EACH CASE IS LESS THAN RS.20 LACS. THEREFORE, THESE APPEALS ARE NOT MAINTAINABLE AND LIABLE TO BE TREATED AS WITHDR AWN. AS REGARDS CROSS-OBJECTIONS ITSSA NOS. 145 TO 147/AHD/2016 DCIT VS GAUTAM FREIGHT PVT LTD ASSESSMENT YEAR: 2006-07 TO 2008-09 PAGE 3 OF 3 ALSO, LEARNED AUTHORIZED REPRESENTATIVE DOES NOT PR ESS THE SAME. THESE CROSS- OBJECTIONS ARE, THEREFORE, ALSO LIABLE TO BE TREATE D AS WITHDRAWN. 6. WHILE IT IS INDEED TRUE THAT THE JURISDICTION TO HEAR THESE APPEALS, IN VIEW OF THE CHANGE OF OFFICE OF THE ASSESSING OFFICER, NOW VEST S IN RAJKOT BENCH; BUT, SINCE THE APPEALS AS ALSO THE CROSS-OBJECTIONS ARE BEING DISM ISSED AS WITHDRAWN, THERE WILL BE NO PURPOSE IN TRANSFERRING THE APPEALS AT THIS STAGE. WE, THEREFORE, DEEM IT FIT AND PROPER TO ACCEPT THE REQUEST OF THE PARTIES AND TREAT THE SAME AS HAVING BEEN WITHDRAWN AT THE REQUEST OF THE PARTIES. 7. IN THE RESULT, THE APPEALS OF THE REVENUE AND CR OSS-OBJECTIONS OF THE ASSESSEE ARE DISMISSED AS WITHDRAWN. PRONOUNCED IN THE OPEN COURT TODAY ON THE 28 TH SEPTEMBER, 2018 SD/- SD/- MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 28 TH DAY OF SEPTEMBER, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ..................28.09.2018 .... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 28.09.2018..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 28.09.2018... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 28.09.2018. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . 28.09.2018. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......