The ITO, Ward-1(4), Ahmedabad V. M/s. Dhan Mercantile Pvt.Ltd., Ahmedabad

ITA 1058/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1317 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 28-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 14-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HITESH P SHAH
• Keywords: Audit objection; Tax effect

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ././ ./ ITA NO. 1058/AHD/2012 / ASSESSMENT YEAR: 2008-09 INCOME-TAX OFFICER, WARD-1(4), AHMEDABAD VS M/S DHAN MERCANTILE PVT LTD, 303-B, SHAPAT-III, NR. GNFC INFO TOWER, SG ROAD, AHMEDABAD PAN : AAACD 5460 A / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI KEYUR PATEL, DR ASSESSEE(S) BY : SHRI HITESH P. SHAH, AR / // / DATE OF HEARING : 28/06/2016 / // / DATE OF PRONOUNCEMENT: 29/06/2016 / // / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-6, AHM EDABAD DATED 15.03.2012 FOR ASSESSMENT YEAR 2008-09, ON THE FOLL OWING GROUNDS:- I. THE LD. CIT(A) ERRED IN DIRECTING THE ASSESSING OFF ICER TO RE- COMPUTE THE INCOME ON THE BASIS OF PERIOD OF MUTUAL FUNDS HELD BY THE COMPANY. II. THE LD. CIT (A) HAS ERRED IN DIRECTING THAT WHENEVE R THE ASSESSEE HAS HELD THE MUTUAL FUND UNITS FOR THE PERIOD MORE THAN 30 DAYS, THE SAME IS TREATED AS INVESTMENT RESULTING IN LONG TERM AND SHORT TERM CAPITAL GAIN AND WHENEVER SUCH UNITS ARE HELD UP TO 30 DAYS, THE INCOME ARISING THERE FROM IS TREATED AS BUSINES S INCOME OF THE ASSESSEE. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSE SSEE CONTENDED THAT AS PER CENTRAL BOARD OF DIRECT TAXES CIRCULAR NO. 21/2 015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, THE REVI SED LIMIT FOR PREFERRING REVENUE'S APPEALS IS RS. 10 LACS. HE SUBMITTED THA T THE TAX EFFECT IN THE ITA NO. 1058/AHD/2012 ITO VS. DHAN MERCANTILE PVT LTD AY : 2008-09 2 PRESENT REVENUE'S APPEAL IS RS.3,97,876/- WHICH IS BELOW THE PRESCRIBED LIMIT OF RS. 10 LACS. HE HAS ALSO PLACED ON RECORD THE WORKING OF TAX EFFECT. HE, THEREFORE, PLEADED THAT IN VIEW OF THE CBDT CIR CULAR, THE REVENUE'S APPEAL MAY BE DISMISSED AS THE TAX EFFECT BEING BEL OW THE PRESCRIBED LIMIT. 3. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CO NTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE AS SESSEE. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. WE FIND THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 IN F.NO.279/MISC. 142/200 7-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WHICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE COMMISSIONER OF INCOME-TAX (APPEALS) S ORDER IS BELOW RS. 10 LAKHS, THEN THAT ORDER WOULD NOT BE CHALLENGED BEFO RE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THES E INSTRUCTIONS WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUA SHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR TH E ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. W E FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS. 10 LAKHS. THEREFORE, THE PRESENT APPEAL IS NOT MAINTA INABLE AND HENCE DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON 29 TH JUNE, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 29/06/2016 *BIJU T. ITA NO. 1058/AHD/2012 ITO VS. DHAN MERCANTILE PVT LTD AY : 2008-09 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, TRUE COPY / // / ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD