Ramanbhai Bavabhai Vanzara, Gandhinagar V. The Dy. Commissioner of Income Tax, Circle-2(1), Ahmedabad

CO 84/AHD/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 4035 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 21-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PV R
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 1351/AHD/2016 WITH CO NO.84/AHD/2016 / ASSESSMENT YEAR: 2011-12 DCIT, CENT.CIR.2(1) AHMEDABAD. VS SHRI RAMANBHAI BAVABHAI VANZARA AMBICA BHUVAN, RAKANPURA VILLAGE TAL. KALOL, DIST. GANDHINAGAR PIN : 382 721. PAN : ABYPV 6316 R / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI MUDIT NAGPAL, SR.DR ASSESSEE BY : NONE / DATE OF HEARING : 31/07/2018 /DATE OF PRONOUNCEMENT : 01/08/2018 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE LD.CIT (A)-12 DATED 4.1.2016 FOR THE ASSESSMENT YEAR 2011-12 CHALLENGING DELETIO N OF ADDITION OF RS.33,45,800/- ON ACCOUNT OF SEIZED CASH. ON RECEI PT OF NOTICE ON REVENUES APPEAL, THE ASSESSEE HAS ALSO FILED CROSS OBJECTION BEARING CO NO.84/AHD/2016. 2. WHILE GOING THROUGH THE GROUNDS OF APPEAL OF THE REVENUE, BENCH HAS ENQUIRED WITH THE LD.DR WHETHER TAX EFFECT ON T HE DISPUTED ADDITION ITA NO.1351/AHD/2016 WITH CO - 2 - FALLS WITHIN THE THRESHOLD MONETARY LIMIT PRESCRIBE D BY THE CBDT IN RESTRICTING THE REVENUE FROM FILING OF APPEAL BEFOR E THE TRIBUNAL, OR WHETHER THE APPEAL OF THE REVENUE FALLS WITHIN THE EXCEPTIONS PROVIDED IN THE SAID CBDT CIRCULAR OR NOT, THE LD.DR DID NOT CO NTEST THE SAME, BUT LEFT TO THE TRIBUNAL TO DECIDE THE ISSUE IN ACCORDANCE W ITH LAW. 3. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 19.5.2016. ON 8.1.2016 THE CBDT HAS ISSUED INSTRUCTIONS BEARIN G NO. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007-ITJ(PT) PROHIB ITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUN AL 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.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRU CTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE DIS PUTED ADDITION IS OF RS.33,45,800/-, AND THEREFORE, THE TAX EFFECT AS PER CBDT CIRCULAR IS TAX ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOU LD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FIL ED, WOULD BE LESS THAN RS.20 LAKHS. THEREFORE, THE PRESENT APPEAL OF THE R EVENUE IS HIT BY THE CBDT CIRCULAR AND HENCE NOT MAINTAINABLE. FURTHER, LD.DR HAS NOT POINTED OUT WHETHER THE CASE OF THE REVENUE FALL WI THIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR OR NOT. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE 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 I S MORE OR REVENUES CASE ITA NO.1351/AHD/2016 WITH CO - 3 - FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN TH E CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF TH E REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 4. SO FAR CROSS OBJECTION OF THE ASSESSEE IS CONCER NED, WE DO NOT FIND ANY MERIT IN THE CO, BECAUSE SUB-SECTION (4) OF SEC TION 253 AUTHORIZES THE RESPONDENT TO FILE CO AGAINST ANY PART OF ORDER IMP UGNED IN THE APPEAL. IN THE PRESENT CO, THE ASSESSEE HAS NOT DEMONSTRATED I TS GRIEVANCES AGAINST ANY PART OF THE CIT(A)S ORDER AND CO IS MERELY IN SUPPORT OF HIS ORDER, THEREFORE, IT IS NOT MAINTAINABLE, HENCE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE AND CO OF THE ASSESSEE, BOTH ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 1 ST AUGUST, 2018. SD/- (WASEEM AHMED) ACCOUNTANT MEMBER SD/- (RAJPAL YADAV) JUDICIAL MEMBER