The Dy.Commissioner of Income Tax Circle-2(1)(2), Surat V. M/s. Shiva Agency Gujarat Pvt. Ltd., Surat

ITA 1175/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2058 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 05-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITHA V NAIR
• Assessee Lawyers: NIRMAL SOMANI
• Keywords: Unexplained cash credit; Retrospective amendment; Tax effect
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.1175/AHD/2016 [ [ / ASSTT. YEAR:2010-2011 D.C.I.T , CIRCLE-2(1)(2), ROOM NO.223, AAYAKAR BHAWAN, MAJURAGATE, SURAT. VS. M/S. SHIVA INDUSTRIAL SECURITIES AGENCY GUJARAT PVT. LTD. R.S. NO.71, SAMEER COMPLEX, NAVSARJAN SOCIETY, PANDESARA, SURAT PAN: AAFCS3845P (APPLICANT) (RESPONENT) REVENUE BY : SMT. SMITHA V. NAIR, SR. DR ASSESSEE BY : S HRI NIRMAL SOMANI, C.A / DATE OF HEARING : 12/11/2018 / DATE OF PRONOUNCEMENT: 13/11/2018 / O R D E R PER AMARJIT SINGH, ACCOUNTANT MEMBER: THIS REVENUES APPEAL FOR A.Y. 2010-11, ARISES FROM ORDER OF THE LD.CIT(A)-II, SURAT, DATED 22/02/2016, IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. ITA NO.1175/AHD/2016 A.Y.2010-2011 2 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIONS OF RS.13,00,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT ON UNSECURED LOAN AND RS.24,00,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S.68 OF THE IT ON SHARE CAPITAL/PREMIUM. 3. AT THE OUTSET, AFTER GOING THROUGH THE GROUNDS OF APPEAL AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW, A QUERY WAS RAISED BY THE BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIRCULAR NO.3/2018 DATED 11.7.2018 RESTRICTING THE FILLING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKHS, THE LD. DR DID NOT DISPUTE THE SAME AND SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACCORDANCE WITH LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESENTED ON 05/05/2016. ON 11/07/2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007-ITJ(PT) PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO 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.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FILED, IS LESS THAN RS.20 LAKHS. FURTHER, THE CASE OF THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIFICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. ITA NO.1175/AHD/2016 A.Y.2010-2011 3 SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 13/11/2018 AT SURAT. -SD- -SD- ( RAJPAL YADAV ) JUDICIAL MEMBER ( AMARJIT SINGH ) ACCOUNTANT MEMBER TRUE COPY SURAT; DATED 13/11/2018 MANISH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A) 5. , / DR, ITAT, 6. [ / GUARD FILE. / BY ORDER, ( ASSTT.REGISTRAR) , / ITAT, SURAT