The ACIT, Circle-1, Bhavnagar V. Suraj Filaments Pvt.Ltd., Bhavnagar

ITA 1180/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1904 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: P M MEHTA
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA NO.1180/AHD/2012 / ASSTT.YEAR: 2008-2009] ACIT, CIR.1 BHAVNAGAR. VS SURAJ FILAMENT PVT. LTD. U/L-24, PATTANI PLAZA COMPLEX DEVBAUG BHAVNAGAR 364 001. PAN : AADCS 0009 B ( APPLICANT ) (RESPONDENT) REVENUE BY : SHRI DINESH SINGH, SR.DR ASSESSEE BY : SHRI P.M. MEHTA, AR / DATE OF HEARING : 11/04/2016 / DATE OF PRONOUNCEMENT: 11/04/2016 *+/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF THE LD.CIT(A)-XX DATED 20.3.2012 PASSED FOR THE ASSTT.YEAR 2008-09. 2. THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE LD .CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.22,43,878/- ON ACCOUNT OF ACCUMU LATED PROFITS AS PER PROVISO U/S.2(22)(3) OF THE INCOME TAX ACT. 3. THE LD.COUNSEL FOR THE ASSESSEE, AT THE OUTSET C ONTENDED THAT THE APPEAL FILED BY THE REVENUE IS NOT ADMISSIBLE, AS THE SAME IS FI LED BY THE REVENUE IN VIOLATION OF CBDT CIRCULAR NO.21/2015 DATED 10.12.2015. BY VIRT UE OF THIS INSTRUCTION, THE BOARD HAS RESTRAINED THE DEPARTMENT NOT TO FILE APP EAL BEFORE THE TRIBUNAL WHERE THE TAX EFFECT IS BELOW RS.10 LAKHS. HE SUBMITTED THAT THE TAX EFFECT ON THE IMPUGNED ADDITION IS LESS THAN RS.10,00,000/- AND THEREFORE , APPEAL OF THE ASSESSEE LIABLE TO BE DISMISSED IN LIMINE . TO SUPPORT THIS CONTENTION, THE LD.COUNSEL FILED A CALCULATION ITA NO.1180/AHD/2012 2 SHEET DEMONSTRATING THAT THE TAX EFFECT IN THE IMPU GNED ADDITION IS LESS THAN RS.6,93,358/- WHICH IS MUCH BELOW RS.10.00 LAKHS ST IPULATED BY THE CBDT. THE LD.DR COULD NOT CONTROVERT TO THIS SUBMISSION OF TH E LD. COUNSEL FOR THE ASSESSEE. 4. WE FIND THAT THE ASSESSEE HAS FILED ITS APPEAL ON 30.5.2012. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/201 5 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUN AL 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 INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE IMPUGNED ADDITION IS RS.22,43,878 /-, AND THEREFORE, TAX EFFECT WOULD BE LESS THAN RS.10 LAKHS. THUS, THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INST RUCTIONS. 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 O F THE AO, IT 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, THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- ( ANIL CHATURVEDI) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 11/04/2016