The ACIT, Circle-7, Ahmedabad V. Smt. Asha R.Jain, Ahmedabad

ITA 1053/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1250 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 22-06-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 08-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: M K PATEL
• Keywords: Business income; Retrospective amendment; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.1053/AHD/2011 / ASSTT. YEAR: 2006-2007 ACIT,CIR.7 AHMEDABAD. VS SMT.ASHA R. JAIN 20, NAVKAR COTTAGE B/H. ASHWAMEGH-IV NR.ALAP BUNGLOWS SATELLITE ROAD, AHMEDABAD. PAN ABCPJ 4778 H ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI DINESH SINGH, SR.DR ASSESSEE BY : SHRI M.K. PATEL, AR / DATE OF HEARING : 22/06/2016 / DATE OF PRONOUNCEMENT: 22 /06/2016 $%/ O R D E R THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINS T THE ORDER OF THE LD.CIT(A)-XIV, AHMEDABAD DATED 25.1.2011 PASSED FOR THE ASSTT.YEAR 2006- 2007. 2. SOLITARY GRIEVANCE OF THE REVENUE IS THAT THE LD .CIT(A) IS ERRED IN DIRECTING THE AO TREAT RS.17,39,333/- AS STCG AS RE TURNED BY ASSESSEE INSTEAD OF BUSINESS INCOME AS ASSESSED BY THE AO. 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS.10 LAKHS, AND THE REFORE, APPEAL FILED BY THE REVENUE IS NOT ADMISSIBLE, IN VIEW OF CBDT CIRCULAR NO.21/2015 DATED 10.12.2015. BY VIRTUE OF THIS INSTRUCTION, THE BOA RD HAS RESTRAINED THE DEPARTMENT NOT TO FILE APPEAL BEFORE THE TRIBUNAL W HERE THE TAX EFFECT IS ITA NO.1053/AHD/2011 2 BELOW RS.10 LAKHS, AND THEREFORE, APPEAL OF THE REV ENUE LIABLE TO BE DISMISSED IN LIMINE . THE LD.DR COULD NOT CONTROVERT TO THIS SUBMISSIO N OF THE LD. COUNSEL FOR THE ASSESSEE. 4. WE FIND THAT THE REVENUE HAS FILED THIS APPEAL ON 8.04.2011. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFEC T 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 PRE SENT CASE, ASSESSED INCOME COMPUTED BY THE AO IS RS.19,97,590/- OUT OF WHICH A N AMOUNT OF RS.17,39,333/- WAS CONTESTED BY THE REVENUE ON ACC OUNT OF NATURE OF TRANSACTION. THE TAX EFFECT ON THIS DISPUTED AMOUNT WOULD BE LESS THAN RS.10 LAKHS. THEREFORE, THE PRESENT APPEAL DESERVES TO B E DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, I T CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE F ILED WITHIN LIMITATION PRESCRIBED UNDER THE LAW. IN VIEW OF THE ABOVE, TH E APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 22 ND JUNE, 2016 AT AHMEDABAD. (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 22/06/2016