Appeal details
Counselvise Citation
[2010] 136 COUNSELVISE.COM (IT) 6574 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 1 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-04-2010
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
C
Next Hearing Date
28-04-2010
Assessment Year
2003-2004
Appeal Filed On
12-03-2007
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER DATE OF HEARING : 28/04/2010 DRAFTED ON: 28/0 4/2010 ITA NO.1046/AHD/2007 ASSESSMENT YEAR : 2003-04 THE INCOME TAX OFFICER WARD-2 NAVSARI VS. SHRI JANK DHANSUKHBHAI PATEL PROP. OF KHYATI CABLE VISION SHIV SHANTIVAN SOCIETY OPP.AJAY SALES AGENCY GRID ROAD NAVSARI PAN/GIR NO. : ABJPP 2606 H (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI M.C. PANDIT, SR. D.R. RESPONDENT BY: SHRI TUSHAR HEMANI O R D E R PER SHRI MUKUL SHRAWAT, JUDICIAL MEMBER : THIS IS REVENUES APPEAL AGAINST ORDER OF THE CI T(APPEALS)-VALSAD DATED 29-11-2006 FOR ASSESSMENT YEAR 2003-04 BY RA ISING FOLLOWING GROUNDS:- [1] ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) GROSSLY ERRED IN DELETING THE A DDITION OF RS.3,68,000/-MADE BY THE ASSESSING OFFICER ON ACCOU NT SUPPRESSION OF CABLE CONNECTION RECEIPTS. [1.2] WHETHER, ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE LD. CIT(A) JUSTIFIED IN ADMITTING T HE ADDITIONAL EVIDENCE I.E. LETTER DATED 23/04/2003 ISSUED BY MAM LATDAR, NAVSARI WITHOUT GRANTING OPPORTUNITY TO THE ASSESSI NG OFFICER TO EXAMINE THE DOCUMENT? ITA NO.1046/AHD /2007 ITO VS. SHRI JANK DHANSUKHBHAI PATEL ASST.YEAR - 2003-04 - 2 - [1.3] WHETHER, ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE LD. CITFAJ JUSTIFIED IN HOLDING THA T THE ASSESSEE HOLD 255 CABLE CONNECTION THOUGH THE MAMLATDAR, NAV SARI, WHO COLLECTS ENTERTAINMENT TAX ON THE BASIS OF NUMBER O F CABLE CONNECTION, CONFIRMED THAT THE ASSESSEE HOLD 300 CA BLE CONNECTION IN THE YEAR UNDER CONSIDERATION? [2] WHETHER, ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE AND IN LAW, THE LD. CIT(A) JUSTIFIED IN DELETING TH E ADDITION OF RS.1,42,784/-MADE BY THE A.O. HOLDING THAT BUSINESS TAXABLE INCOME CAMOUFLAGED IN THE GUISE OF AGRICULTURE INCO ME? [2.1] WHETHER, ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE LD. CIT(A) JUSTIFIED IN HOLDING THA T THE ASSESSEE HAD CULTIVATED AGRICULTURE LAND HELD IN THE NAME OF HIS BROTHER-IN- LAW THOUGH THE ASSESSEE FAILED TO SUBSTANTIATE HIS CLAIM BY SUPPORTING DOCUMENTARY EVIDENCE? [2.2] WHETHER, ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE LD. CIT(A) JUSTIFIED IN HOLDING THA T THE DATA PUBLISHED BY THE AGRICULTURE UNIVERSITY, NAVSARI, O N THE BASIS OF WHICH THE AO HAS WORKED ASSESSEE'S AGRICULTURE INCO ME, IS NOT FINALITY AS THESE DATA HAVE ACADEMIC PURPOSE THOUGH THE LD. CIT(A) ACCEPTED THE AGRICULTURE INCOME WORKED OUT B Y THE AO IN ANOTHER CASE ON THE BASIS OF THE DATA OF AGRICULTUR E UNIVERSITY? [2.3] WHETHER, ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE LD. CIT(A) JUSTIFIED IN HOLDING THE ASSESSEE HAS NOT INCURRED INTEREST COST THOUGH THE ASSESSEE HAS ACTU ALLY INCURRED INTEREST EXPENSES? [2.4] WHETHER, ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE LD. CIT(A) JUSTIFIED IN ESTIMATING THE AGRICULTURE INCOME OF THE ASSESSEE AT RS.2,09,054/- AS AGAINST RS.65,876/- WORKED OUT BY THE A.O.? ITA NO.1046/AHD /2007 ITO VS. SHRI JANK DHANSUKHBHAI PATEL ASST.YEAR - 2003-04 - 3 - 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LEARNED C.I.T.(APPEALS) OUGHT TO HAVE UPHELD TH E ORDER OF THE A.O. 4. IT IS THEREFORE PREYED THAT THE ORDER OF T HE CIT(A) BE SET- ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . THE APPELLANT CRAVES TO ADD, ALTER OR AMEND ANY GR OUNDS OF APPEAL. 2. AT THE OUT SET, A QUERY WAS RAISED BY THE BENCH AS TO THE MAINTAINABILITY OF THE APPEAL, IN VIEW OF RECENT CB DT CIRCULAR RESTRICTING FILING OF APPEAL BY THE REVENUE, THE LEARNED DR DID NOT CONTROVERT THE SAME, AND STATED THAT THE TAX EFFECT IN THE PRESENT CASE IS BELOW THE TAX LIMIT PRESCRIBED THE CBDT. LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT IN VIEW OF THE VARIOUS INSTRUCTIONS OF THE CBD T RESTRICTING THE FILING OF APPEALS BEFORE THE APPELLATE TRIBUNALS, HIGH COU RTS AND SUPREME COURT, THE APPEAL FILED BY THE REVENUE SHOULD BE DI SMISSED IN LIMINE . 3. AFTER HAVING HEARD BOTH PARTIES, CONSIDERING THE MATERIAL 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 27-3-2 000, 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 DA TED 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 ITA NO.1046/AHD /2007 ITO VS. SHRI JANK DHANSUKHBHAI PATEL ASST.YEAR - 2003-04 - 4 - CONDITIONS WERE SPECIFIED, FOR FILING APPEALS BEFOR E APPELLATE TRIBUNALS, 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]. ITA NO.1046/AHD /2007 ITO VS. SHRI JANK DHANSUKHBHAI PATEL ASST.YEAR - 2003-04 - 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] . 4. IN THIS VIEW OF THE MATTER, RESPECTFULLY FOLLOWI NG VARIOUS ORDERS OF THIS TRIBUNAL ON THIS ISSUE INCLUDING THE DECISION CITED ABOVE, WE DISMISS THE APPEAL OF THE REVENUE IN LIMINE . 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 28 TH APRIL, 2010 SD/- SD/- ( A.N. PAHUJA ) ( MUKUL SHRAWA T ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 28/ 04 /2010 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT 3. THE CIT CONCERNED. 4. THE LD. C IT(APPEALS)-VALSAD 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD
Mehul