The ITO, Vapi Ward-2, Vapi V. M/s. Mudra Tiles, SILVASSA

ITA 1072/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9796 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-01-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 15-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.1072/AHD/2012 /BLOCK ASSTT. YEAR: 2005-2006 ITO, VAPI WARD-2 VAPI. VS M/S.MUNDRA TILES PLOT NO.19, SILVASSA INDL. CO-OP. SOCIETY OPP: 66 KVA POWER STATION, AMLI SILVASSA. PAN : AAKFM 3950 B %& / (APPELLANT) '( %& / (RESPONDENT) REVENUE BY : SMT. SONIA KUMAR, SR ASSESSEE BY : SHRI M.K. PATEL, AR / DATE OF HEARING : 08/01/2016 / DATE OF PRONOUNCEMENT: /01/2016 )*/ 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), VALSAD DATED 15.2.2012 PASSED FOR THE ASSTT.YEAR 2005-06. 2. SOLE GROUND RAISED BY THE REVENUE IN THE APPEAL READS AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THELD.CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/ S.80IB OF THE I.T.ACT ON DISALLOWANCE OF RS.8,92,767/-, MADE U/S.40A(IA): 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT APPEAL FILED BY THE REVENUE IS HIT BY THE CBDT CIRCULAR NO .21/2015 DATED 10.12.2015, WHEREBY, THE BOARD HAS DIRECTED THE DEP ARTMENT NOT TO FILE DEPARTMENTS APPEAL BEFORE THE TRIBUNAL, WHERE THE TAX EFFECT IS BELOW RS.10 ITA NO.1072/AHD/2012 2 LAKHS, AND AS SUCH THE PRESENT APPEAL OF THE REVENU E IS LIABLE TO BE DISMISSED IN LIMINE . THE LD.DR, HAS NOT CONTROVERTED TO THE DIRECTION S OF THE CBDT CONTAINED IN THE ABOVE CIRCULAR. 4. WE FIND THAT THIS APPEAL WAS PRESENTED ON 15.05. 2012. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/201 5 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE 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 I NSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE ASSESSED INCOME OF THE ASSESSEE IS OF RS.13,12,461/-. THE TAX EFFECT ON T HE IMPUGNED DEDUCTION IS LESS THAN RS.10 LAKHS. THEREFORE, THE PRESENT APPE AL DESERVES 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 ALS, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFI CATION 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 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. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 8 TH JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 08/01/2016