The DCIT, Circle-1(2), Ahmedabad V. Smt. vimlaben Dahyabhai Patel, Ahmedabad

ITA 1182/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5546 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 12-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: S N DIVETIA
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO.1182/AHD/2017 / ASSTT. YEAR: 2013-14 DCIT, CIR.1(2) AHMEDABAD. VS. SMT.VIMALABEN DAHYABHAI PATEL B-301, SHILALEKH APARTMENT SHAHIBAUG AHMEDABAD. PAN : AKXPP 2403 P ( APPLICANT ) ( RESPONENT ) REVENUE BY : SHRI S.K. DEV, SR.DR ASSESSEE BY : SHRI S.N. DIVETIA, AR / DATE OF HEARING : 31/01/2019 / DATE OF PRONOUNCEMENT: 01 /02/2019 +,/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST OR DER OF LD.CIT(A)-10, AHMEDABAD DATED 23.2.2017 PASSED FOR THE ASSTT.YEAR 2013-14. 2. ONLY GROUND RAISED IN THE APPEAL OF THE REVENUE IS THAT THE LD.CIT(A) HAS ERRED IN TREATING SHORT TERM CAPITAL GAIN OF RS .1,04,90,699/- AS INCOME FROM OTHER SOURCES. 3. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT AS PER THE CBDT INSTRUCTION BEARING NO.3 OF 2018 DATED 11. 08.2018, WHICH PROHIBITED THE DEPARTMENT NOT TO FILE APPEAL BEFORE THE TRIBUNAL, WHERE TAX ITA NO.1182/AHD/2017 2 EFFECTIVE IS BELOW RS.20 LAKHS. HE FILED A TAX CAL CULATION SHEET DEMONSTRATING THAT TAX EFFECT ON THE DISPUTED ADDITION IS BELOW R S.20 LAKHS. IT READS AS UNDER: PARTICULARS AMOUNT AMOUNT TOTAL INCOME AS PER ROI 1,21,20,670 LESS; INCOME OTHER THAN STCG @ NORMAL RATE 16,29,971 BALANCE STCG SPECIAL RATE INCOME @ 15% 1,04,90,699 TAX ON TOTAL INCOME AS PER ROI (A) 20,02,596 TAX ON STCG @ 15% 15,73,605 SC&EC@2%+1% 47,210 TAX ON STCG AS PER ROI 16,21,215 ASSESSED INCOME 1,21,20,670 TAX ON ASSESSED INCOME AS PER DN 35,76,201 SC&EC@2% + 1% 1,07,286 TOTAL TAX AS PER ASSESSED INCOME (B) 36,83,487A INCREMENTAL TAX ON STCG (B-A) 16,80,891 4. THE LD.COUNSEL FOR THE ASSESSEE ACCORDINGLY PRAY ED THAT THE TAX EFFECT ON IMPUGNED ADDITION BEING BELOW RS.20 LAKHS, THEREFOR E, THE PRESENT APPEAL IS NOT MAINTAINABLE AT THE THRESHOLD. THE LD.DR HAS N OT DISPUTED APPLICABILITY OF ABOVE CIRCULAR CITED BY THE LD.COUNSEL FOR THE ASSE SSEE, AND HAS NOT POINTED OUT WHETHER THE CASE OF THE REVENUE FALL WITHIN THE AMB IT OF EXCEPTIONS PROVIDED IN THE CIRCULAR OR NOT. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR, WHICH IS APPLICABLE TO PENDING APPEALS ALSO, AND PROVISIO NS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. ITA NO.1182/AHD/2017 3 5. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIF ICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MO RE OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRC ULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR REC ALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D DUE TO LOW TAX EFFECT. ORDER PRONOUNCED IN THE COURT ON 1 ST FEBRUARY, 2019 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/02/2019