The ACIT, Circle-7, Ahmedabad V. Shri Sevantilal S.Shah, Ahmedabad

ITA 1049/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9237 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 08-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Keywords: Business income; Retrospective amendment; Tax effect

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.1049AHD/2011 / ASSTT. YEAR: 2006-2007 ACIT, CIR.7 AHMEDABAD. VS SHRI SEVANTILAL S. SHAH 14, SHANGRILA, ASHWAMEGH IBHAG-3 132 FT. RING ROAD, SATELLITE AHMEDABAD-15. PAN : ACEPS 6598 K ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI NARENDRA SINGH, SR.DR ASSESSEE BY : SHRI HARDIK VORA, AR / DATE OF HEARING : 09/03/2016 / DATE OF PRONOUNCEMENT: 09/03/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LD.COMMISSIONER INCOME-TAX (APPEALS)-XIV, AHMEDABAD DATED 24.1.2011 PASSED FOR THE ASSTT.YEAR 2006-07. ITA NO.1049/AHD/2011 2 2. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT TH E LD.CIT(A) HAS ERRED IN DIRECTING THE AO TO ALLOW RS.14,11,723/- AS STCG AS RETURNED Y THE ASSESSEE, INSTEAD OF BUSINESS INCOME AS ASSESSED BY AO. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF RECEN T CBDT CIRCULAR RESTRICTING THE FILING OF APPEAL BEFORE THE TRIBUNA L, WHERE TAX EFFECT IS BELOW RS.10 LAKHS. THE LD.DR, COULD NOT CONTROVERT THE AB OVE SUBMISSIONS OF THE ASSESSEE NOR DISPUTE APPLICABILITY OF THE CBDT CIRC ULAR CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE. 4. ON DUE CONSIDERATION OF THE SUBMISSIONS OF THE B OTH THE PARTIES, WE FIND THAT THE APPEAL WAS PRESENTED ON 8.4.2011. ON 10.1 2.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST T HE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE ASSESSED INCOME OF THE ASS ESSEE IS 16,28,920/- AND THEREFORE, TAX EFFECT ON THE IMPUGNED ADDITION WOUL D BE LESS THAN RS.10 LAKHS, AND THEREFORE, THE PRESENT APPEAL OF THE REVENUE DE SERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INST RUCTIONS. FURTHER, THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVID ED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPE AL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIF ICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR I T FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DE PARTMENT WILL BE AT LIBERTY ITA NO.1049/AHD/2011 3 TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 9 TH MARCH, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 09/03/2016