The ITO, Ward-1(3), JAMNAGAR V. Shri Dinesh Meghji Mange, JAMNAGAR

ITA 1119/RJT/2009

• Counselvise Citation: 111924914 RSA 2009
• Duration Of Justice: 1 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 27-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: J C RANPURA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.1119/RJT/2009 (ASSESSMENT YEAR 2005-06) ITO, WD.1(3) VS SHRI DINESH MEGHJI MANGE, JAMNAGAR PROP. SAI KRUOPA TRADERS, 54, DIGVIJAY PLOT, JAMNAGAR PAN : ACDPM3322Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AVINASH KUMAR, DR RESPONDENT BY : SHRI J.C. RANPURA, CA O R D E R PER AL GEHLOT, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF CIT(A), JAMNAGAR DATED 03/09/2009 FOR THE ASSESSMENT YEAR 2 002-03. THE FOLLOWING EFFECTIVE GROUND IS RAISED IN THE APPEAL: 1. THE LD.CIT(A) HAS ERRED IN LAW AND IN RESTRICTI NG THE ADDITION OF RS.19654/- OUT OF TOTAL ADDITION OF RS. 818182/- MADE ON ACCOUNT OF LAW GROSS PROFIT ON SALE OF URD PURCHASE. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. THE LD.AR OF THE ASSESSEE PLACED THE TAX C ALCULATION BEFORE US WHICH IS AS MENTIONED BELOW PARTICULARS RETURNED / ASSESSED INCOME TAX ON RETURNED / ASSESSED INCOME SURCHARGE EDU. CESS TOTAL TAX RETURNED INCOME 112600 11520 1152 253 12925 ASSESSED INCOME 930782 253235 25323 5571 284129 RELIEF GRANTED BY HONBLE CIT(A) 798528 239558 23656 5270 268785 TOTAL INCOME AFTER CIT(A)S ORDER 132254 15451 1545 340 17336 ITA NO.1119/RJT/2009 2 3. THE LD. AR SUBMITTED THAT AR SUBMITTED THAT TAX EFFECT IS LESS THAN RS. 3 LAKH, THEREFORE IT IS COVERED BY CBDT CIRCULAR NO. 3/2011 (F. NO. 279/MISC.142/2007-ITJ) DATED 09/02/2011 AND DEPARTM ENT SHOULD NOT HAVE FILED THE APPEAL. AFTER HEARING LD. DR WE FIND THAT ON SI MILAR FACTS THE ITAT, RAJKOT BENCH IN THE CASE OF ITO, WARD-3(2), JAMNAGAR VS. SHRI NAROTTAM KARAMSHI BODA, ITA NO. 647/RJT/2010 HAS PASSED THE ORDER DTD . 18/03/2011 WHERE IN IT IS HELD AS UNDER. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE P ARTIES AND PERUSED THE RECORD. THE LD.AR OF THE ASSESSEE PLAC ED BEFORE US A COPIES OF BOARDS INSTRUCTIONS NO.5/2008 DATED 15-5 -2008 AND NO.3/2011 (F.NO.279/MISC.142/2007-ITJ) DATED 9-2-20 11 AND POINTED OUT THAT THE BOARD HAS EXPRESSLY PROHIBITED THE DEPARTMENT FROM FILING THE APPEAL BEFORE THE TRIBUNAL IN A CAS E WHERE THE TAX EFFECT IS LESS THAN RS.3 LAKHS. THE LD.DR POINTED OUT THAT IN INSTRUCTION NO. 3/2011 (.NO.279/MISC. 142/2007-ITJ) DATED 09-02- 2011 IT HAS BEEN CLEARLY STATED AT PARAGRAPH 11 THA T THESE INSTRUCTIONS WILL APPLY ONLY IN RESPECT OF APPEALS FILED ON OR AFTER 15- 05-2008 AND THIS APPEAL IS FILED BEFORE THE INSTRUC TION IS ISSUED. THE SAID CLAUSE READS AS FOLLOWS: 11. THIS INSTRUCTION WILL APPLY TO APPEALS FILED O N OR AFTER 15 TH OF MAY 2008. HOWEVER, THE CASES WHERE APPEALS HAV E BEEN FILED BEFORE 15 TH OF MAY 2008 WILL BE GOVERNED BY THE INSTRUCTIONS O N THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEA L WAS FILED. 3. ON THE OTHER, THE LD.AR FILED A COMPARATIVE CHAR T OF BOTH THE INSTRUCTIONS, I.E. INSTRUCTIONS INSTRUCTIONS NO.5/2 008 DATED 15-5- 2008 AND NO.3/2011 (F.NO.279/MISC.142/2007-ITJ) DAT ED 9-2- 2011. HE SUBMITTED THAT IN INSTRUCTION DATED 15-05 -2008 SIMILAR CLAUSE WAS ALREADY THERE. APART FROM THIS, THE BOM BAY HIGH COURT IN THE CASE OF CIT VS PITHWA ENGG WORKS 276 ITR 51 9 (BOM) HELD THAT THE CENTRAL BOARD OF DIRECT TAXES BY ITS CI RCULAR DATED MARCH 27,2000, HAS TAKEN A POLICY DECISION NOT TO F ILE REFERENCES IF ITA NO.1119/RJT/2009 3 THE TAX EFFECT IS LESS THAN RS.2 LAKHS. THE CIRCUL AR IS APPLICABLE EVEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDE D. THE DEPARTMENT CANNOT CONTEND THAT CIRCULAR IS BINDING ONLY WITH RESPECT TO THE NEW CASES AND NOT WITH RESPECT TO TH E OLD REFERRED CASES EVEN IF THE TAX IS LESS THAN RS.2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN THE LIGHT OF THE JUDGMENT OF THE BOMBAY HIGH COURT WE FIND THAT THE INSTRUCTION DATED 09-02-2011 IS APPLICABLE TO APPEALS FILED BEF ORE ISSUANCE OF INSTRUCTION DATED 09-02-2011. 4. FOLLOWING THE ABOVE ORDER OF ITAT WE DISMISS TH E REVENUES APPEAL IN LIMINIE. ORDER PRONOUNCED IN THE OPEN COURT ON 06/05/2011 SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 06/05/2011 COPY TO: 1. THE INCOME TAX OFFICER, WARD-1(3), JAMNAGARR 2. SHRI DINESH MEGHJI MANGE, JAMNAGAR 3. THE CIT, JAMNAGAR 4. THE CIT(A), JAMNAGAR 5. THE DR, I.T.A.T., RAJKOT TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT