M/s. Kavyalon Impex Pvt.Ltd., Surat V. The Income tax Officer,Ward-1(3), Surat

CO 88/AHD/2011

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6529 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 15-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K PATEL
• Keywords: Question of law; Tax effect

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'.#$%, '& ' ' BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ./ I.T.A. NO.275/AHD/2011 WITH CO NO.88/AHD/2011 ( ) * ) * ) * ) * / / / / ASSESSMENT YEAR : 2007-08) INCOME TAX OFFICER WARD-1(3) SURAT ) ) ) ) / VS. M/S.KAVYALON IMPEX PVT.LTD. 2 ND FLOOR VISHVAKARMA CHAMBERS MAJURA GATE, SURAT + '& ./,- ./ PAN/GIR NO. :AACCK6284 D ( +. / // / APPELLANT ) .. ( /0+. / RESPONDENT ) REVENUE BY : SHRI A.K. PATEL, D.R. ASSESSEE BY : -NONE- )1 2 & / / / / DATE OF HEARING : 30/09/2011 3$* 2 & / DATE OF PRONOUNCEMENT : 14.10.2011 '4 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WH ICH HAS EMANATED FROM THE ORDER OF THE LEARNED CIT(APPEALS) -I, AHMEDABAD DATED 29/10/2010 PASSED FOR ASSESSMENT YEAR 2007-08 . THE RESPONDENT ASSESSEE IS IN CROSS OBJECTION. REVENUES APPEAL, I.E. ITA NO.275/AHD/2011 2. GROUNDS READ AS UNDER:- [1] ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE ON A CCOUNT OF ITA NO.275/AHD/2011(BY REVENUE) AND CO NO.88/AHD/2011 ITO VS. M/S.KAVYALON IMPEX PVT.LTD. ASST.YEAR - 2007-08 - 2 - LOANS AND ADVANCES EVEN S THE ASSESSEE FAILED TO SU BSTANTIATE HIS CLAIM WITH PROPER EVIDENCES. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. 2.1. FROM THE SIDE OF THE ASSESSEE IN CO, THE GROU ND RAISED IS AS FOLLOWS:- THE ASSESSING OFFICER ERRED BY DISALLOWING RS.6,27, 291/- OBSERVING THAT LOANS AND ADVANCES WERE NOT EXPLAINE D BY US WHILE CIT APPEALS HAS RIGHTLY APPRECIATED THE SUBMISSION & DELETED THE ADDITION ON THE FOLLOWING REMARKS. 3. AT THE OUTSET, IT IS INFORMED THAT THE TAX EFFE CT IN REVENUES APPEAL IS ONLY RS.1,88,187/-. I N VIEW OF RECENT CBDT CIRCULAR RESTRICTING FILING OF APPEAL BY THE REVENUE, THE LEARNED DR DID NOT CO NTROVERT THE SAME, AND STATED THAT THE TAX EFFECT IN THE PRESENT CASE IS BELOW THE TAX LIMIT PRESCRIBED THE CBDT. 4. AFTER HAVING HEARD THE LD.DR, CONSIDERING THE MA TERIAL AVAILABLE ON RECORD AND THE CBDT CIRCULARS ON THIS ISSUE, WE FIND THAT ITAT IS TAKING CONSISTENT VIEW IN NUMBER OF CASES ABOUT ADM ISSIBILITY OF APPEAL FILED BY THE REVENUE IN VIEW OF VARIOUS INSTRUCTION S ISSUED BY CBDT FROM TIME TO TIME, VIZ. INSTRUCTION NO.1979 DATED 2 7-3-2000, NO.1985 DATED 29-6-2000, NO.6 OF 2003 DATED 17-07-2003, NO. 19 OF 2003 DATED 23-12-2003, NO.5/2004 DATED 27-5-2004, NO.2/2005 DATED 24-10-2005 AND NO.5/2007 DATED 16-7-2007 AND LASTLY INSTRUCTIO N NO.F.NO.279/MISC.142/2007-IT DATED 15-5-2008 WHEREI N MONETARY LIMITS FOR FILING DEPARTMENTAL APPEALS (INCOME-TAX MATTERS) AND OTHER CONDITIONS WERE SPECIFIED, FOR FILING APPEALS BEFOR E APPELLATE TRIBUNALS, ITA NO.275/AHD/2011(BY REVENUE) AND CO NO.88/AHD/2011 ITO VS. M/S.KAVYALON IMPEX PVT.LTD. ASST.YEAR - 2007-08 - 3 - HIGH COURTS AND SUPREME COURT. DECISION OF COORDIN ATING BENCH OF ITAT, RAJKOT IN THE CASE OF ACIT VS. RAJOO ENGINEE RS LTD.[2006] 100 ITD 555, WHEREIN THE HON'BLE BENCH HAS DISMISSED TH E REVENUES APPEAL BY HOLDING AS UNDER (HEAD NOTES):- IT IS TRUE THAT THE HIGH COURT DECISION IN COMMISS IONER OF INCOME-TAX V. PITHWA ENGG. WORKS [2005], 276 ITR 519 WAS NOT D EALING WITH THE NEW LIMIT OF THE CIRCULAR DATED 24-10-2005. IT WAS WITH REFERENCE TO THE EARLIER CIRCULAR WHERE REFERENCE WAS NOT REQUIRED T O BE FILED TO THE HIGH COURT IF THE TAX EFFECT WAS LESS THAN RS.2 LAKHS. THE CONTENTION OF THE REVENUE IN THAT CASE WAS THAT RS.2 LAKHS LIMIT WAS INCREASED BY CIRCULAR DATED 27-3-2000 AND PRIOR TO THAT, THE LIMIT WAS ON LY RS.50,000/- AND THE CONTENTION OF THE REVENUE WAS THAT THE NEW LIMI T WOULD NOT BE APPLICABLE TO THE OLD REFERENCES. THE HIGH COURT R EJECTED THE SAID CONTENTION OF THE REVENUE. [PARAGRAPH 4]. IN THOSE CIRCUMSTANCES, THOUGH THE SAID HIGH COURT DECISION DID NOT DEAL WITH THE CIRCULAR DATED 24-10-2005, BUT IT HAD DEALT WITH THE EARLIER CIRCULAR AND THE LIMITS OF THAT CIRCULAR WERE APPLI ED EVEN TO THE CASES WHICH WERE PRIOR TO THE OLD CIRCULAR. THEREFORE, TH E RATIO OF THAT DECISION WAS APPLICABLE IN THE INSTANT CASE AS WELL . THE CBDT HAS TAKEN A POLICY DECISION NOT TO FILE APPEALS IN SUCH TYPE OF CASES AND THE CIRCULAR IS BINDING ON THE REVENUE EVEN TO APPEALS FILED BEFORE 31-10- 2005 AND THE DEPTT.. WOULD NOT BE JUSTIFIED IN PROC EEDING WITH THOSE APPEALS WITHIN THE MONETARY LIMIT OF TAX EFFECT PRE SCRIBED IN THE CIRCULAR DATED 24-10-2005 [PARAGRAPH 5] THE CONTENTION OF THE REVENUE THAT THE CASE OF THE ASSESSEE WAS COVERED BY THE EXCEPTION 3 HAD ALSO NO FORCE INASMUCH AS TH E SAID EXCEPTION PROVIDES THAT THE CBDT HAS ALSO DECIDED THAT IN CAS ES INVOLVING SUBSTANTIAL QUESTION OF LAW OF IMPORTANCE AS WELL A S IN CASES WHERE THE SAME QUESTION OF LAW WILL REPEATEDLY ARISE, EITHER IN THE CASE CONCERNED OR IN SIMILAR CASES, SHOULD BE SEPARATELY CONSIDERE D ON MERITS WITHOUT BEING HINDERED BY THE MONETARY LIMITS [PARAGRAPH 6] IN THIS VIEW OF THE MATTER, RESPECTFULLY FOLLOWING VARIOUS ORDERS OF THIS TRIBUNAL ON THIS ISSUE INCLUDING THE DECISION CITED ABOVE, WE DISMISS ITA NO.275/AHD/2011(BY REVENUE) AND CO NO.88/AHD/2011 ITO VS. M/S.KAVYALON IMPEX PVT.LTD. ASST.YEAR - 2007-08 - 4 - THE APPEAL OF THE REVENUE IN LIMINE . THUS, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. 4. IN THE RESULT, THE DEPARTMENTAL APPEAL AS WELL AS CROSS OBJECTION FILED BY THE ASSESSEE BOTH ARE DISMISSED. SD/- SD/- ( A.K. GARODIA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 14 / 10 /2011 5..), .)../ T.C. NAIR, SR. PS '4 2 /6 7'6* '4 2 /6 7'6* '4 2 /6 7'6* '4 2 /6 7'6*/ COPY OF THE ORDER FORWARDED TO : 1. +. / THE APPELLANT 2. /0+. / THE RESPONDENT. 3. 8 / CONCERNED CIT 4. 8() / THE CIT(A)-I, SURAT 5. 6;# /) , , / DR, ITAT, AHMEDABAD 6. # <1 / GUARD FILE. '4) '4) '4) '4) / BY ORDER, 06 / //TRUE COPY// = == =/ // / , , , , ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION..10.10.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.10.2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 14.10.11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.10.11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER