Shri Sakibag Salimbag Mirza, Baroda V. The Income Tax Officer, Ward-2(6)., Baroda

CO 84/AHD/2014

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 4049 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-08-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 16-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: MUKESH THAKKAR
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO.2948/AHD/2013 & CO NO.84/AHD/2014 (ASSESSMENT YEAR : 2009-10) THE ITO WARD-2(6) BARODA VS. M/S.SAKILBAG SALIMBAG MIRZA 1 ST FLOOR, FARHAD COMPLEX NR.NARSINH BHAVAN SAYAJIGANJ, BARODA 390 015 [PAN NO.AMGPM 8541 C] ( APPELLANT ) .. ( RESPONDENT & CROSS OBJECTOR ) REVENUE BY : SHRI S.,K. DEV, SR.DR ASSESSEE BY : SHRI MUKESH THAKKAR, AR DATE OF HEARING 23/08/2018 DATE OF PRONOUNCEMENT 24/08/2018 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL HAS BEEN FILED BY THE REVENUE BEFORE US AGAINST THE ORDER DATED 11.09.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-II, BARODA [LD.CIT(A) IN SHORT] FOR ASSESSMENT YEAR (AY) 2009-10 AND THE ASSESSEE FILED CROSS OBJECTION THEREON. 2. THE REVENUE RAISED THE FOLLOWING GROUND OF AP PEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN LAW AS WELL AS IN FACTS IN DELETING THE ADDITION OF RS.52, 50,193/- U/S.68 OF THE ACT TREATING THE CASH DEPOSITS IN THE TWO UNDISCLOSED BANK ACCOU NTS AS THE SALE PROCEEDS OF UNDISCLOSED BUSINESS OF THE ASSESSEE, EVEN THOUGH T HE ASSESSEE HAS FAILED TO SUBSTANTIATE WITH ANY EVIDENCES. - 2 - ITA NO.2948/AHD/2013 & CO NO.84/AHD/2014 (BY ASSESSEE ) ITO VS.SAKILBAG SALIMBAG MIRZA ASST.YEAR 2009-10 3. AT THE OUTSET, AFTER GOING THROUGH THE GROUNDS O F APPEAL AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW, A QUERY WAS RAISE D BY THE BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIRCULAR NO.3/2018 DATED 11.7.2018 RESTRICTING THE FILLING O F THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKHS, THE LD.DR DID NOT DISPUTE THE SAME AND SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACC ORDANCE WITH LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 12.12.2013. ON 11.7.2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2 018 UNDER FILE NO.F.NO.279/MISC.142/2007-ITJ(PT) PROHIBITING ITS S UBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.2 0 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEA BLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE I SSUE AGAINST WHICH APPEAL IS FILED, IS LESS THAN RS.20 LAKHS. FURTHER, THE CASE OF THE REV ENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, W E ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIFICA TION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPAR TMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH AP PLICATION SHOULD BE FILED WITHIN THE TIME - 3 - ITA NO.2948/AHD/2013 & CO NO.84/AHD/2014 (BY ASSESSEE ) ITO VS.SAKILBAG SALIMBAG MIRZA ASST.YEAR 2009-10 PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE , THE APPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ASSESSEES CO NO.84/AHD/2014 6. ASSESSEES CROSS OBJECTION NO.84/AHD/2014 FOR AY 2009-10 (ARISING OUT OF ITA NO.2948/AHD/2013) FOR AY 2009-10 REVENUES APPEAL ). 7. SINCE WE HAVE DISMISSED THE REVENUES APPEAL IN ITA NO.2948/AHD/2013 FOR AY 2009-10, AS NOT MAINTAINABLE, THEREFORE CROSS OBJEC TION FILED BY THE ASSESSEE OUT OF REVENUES APPEAL IS ALSO DISMISSED AS NOT MAINTAINA BLE. WE ALSO SIMULTANEOUSLY NOTE THAT THE ASSESSEE HAS MERELY ASSAILED THE ORDER OF ASSESSING OFFICER IS NOT AGGRIEVED BY THE ORDER OF CIT(A) IN ANY MANNER. THUS, CROSS OBJ ECTION IS NOT SUSTAINABLE IN TERMS OF SECTION 253(4) OF THE INCOME TAX ACT, 1961. 8. IN THE RESULT, REVENUES APPEAL AS WELL AS ASSES SEES CROSS OBJECTION BOTH ARE DISMISSED AS NOT MAINTAINABLE. THIS ORDER PRONOUNCED IN OPEN COURT ON 24/ 08 /2018 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 24/ 08 /2018 .., . ../ T.C. NAIR, SR. PS - 4 - ITA NO.2948/AHD/2013 & CO NO.84/AHD/2014 (BY ASSESSEE ) ITO VS.SAKILBAG SALIMBAG MIRZA ASST.YEAR 2009-10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-II, BARODA 5. !'# , $ , / DR, ITAT, AHMEDABAD 6. #() *+ / GUARD FILE. / BY ORDER, ! //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 23.8.2018 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23.8.2018 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.24.8.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24.8.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER