Income-tax Officer, V. Dr. Abdulrafique Abdulrehman Shaikh, Nashik

ITA 1192/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9905 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-07-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 01-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Reason to believe
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1192/PUN/2016 ! ! / ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, WARD-2(1), NASHIK ....... / APPELLANT / V/S. DR. ABDULRAFIQUE ABDULREHMAN SHAIKH, 1218, NASEEM HOSPITAL, TALAWADI, BHADRAKALI, NEAR PRABHAT TALKIES, NASHIK 422 001 PAN : ADBPS3111J / RESPONDENT APPELLANT BY : SHRI SUDHENDU DAS RESPONDENT BY : SHRI HIMANSHU GANDHI / DATE OF HEARING : 26.09.2018 / DATE OF PRONOUNCEMENT : 26.09.2018 / ORDER PER D. KARUNAKARA RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF C IT(A)-2, NASHIK, DATED 22-03-2016 FOR THE A.Y. 2009-10. 2. GROUNDS RAISED BY THE REVENUE ARE EXTRACTED BELOW : 1. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE ID. CIT(A)-2, NASHIK IS JUSTIFIED IN QUASHING THE ORDER DATED 14.07.2014 PASSED BY THE A.O. U/S 143(3) R.W.S. 147 OF THE ACT ON THE SOLE GROUND THAT THE A.O HAS NOT BROUGHT ON RECORD ANY NEW MATE RIAL FOR RECORDING REASON FOR REOPENING THE ASSESSMENT? (T.E. RS. 27,2 7,150/- ON ACCOUNT OF CAPITAL GAIN) 2 ITA NO.1192/PUN/2016 DR.ABDULRAFIQUE A. SHAIKH 2. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF T HE CASE, THE ID. CIT(A)-2, NASHIK IS JUSTIFIED IN QUASHING THE ASSES SMENT PROCEEDINGS REOPENED UNDER SECTION 147 OF THE INCOME TAX ACT, 1 961 WITHOUT APPRECIATING THAT THE POWER TO REOPEN ASSESSMENT IS MUCH WIDER UNDER THE AMENDED PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT, 1961, W.E.F. 01.04.1989? 3. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE C ASE, THE I D. CIT(A)-2, NASHIK IS JUSTIFIED IN QUASHING THE ORDER DATED 14.07.2014 PASSED BY THE A.O. U/S 143(3) R.W.S. 147 WITHOUT AP PRECIATING THE FACT THAT THE PROCEEDINGS U/S 147 WAS INITIATED TO BRING TO THE TAX, THE ESCAPED INCOME, AFTER RECORDING THE SATISFACTION BY THE ASS ESSING OFFICER. 4. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A)-2, NASHIK IS JUSTIFIED IN QUASHING THE ORDER DATED 14.07 . 2014 WITHOUT APPRECIATING THE FACT THAT THE CONDITION FO R ACTION U/S 147 IS THAT A.O SHOULD HAVE REASON TO BELIEVE THAT INCOME HAS E SCAPED ASSESSMENT WHICH BELIEF CAN BE REACHED IN ANY MANNE R AND I S NOT QUALIFIED BY A PRECONDITION OF FAI T H AND TRUE D I SCLOSURE OF MATERIA L FACT BY THE ASSESSEE AS CONTEMPLATED IN THE ORDER?. 5. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEAR ING. 3. BRIEFLY STATED RELEVANT FACTS INCLUDES THAT THE ASSESS EE IS AN INDIVIDUAL AND IS ENGAGED IN THE PROFESSION AS DOCTOR. ASSE SSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.9,93,572/-. AO ASSESSED THE INCOME OF THE ASSESSEE AT RS.10,04,180/-. THE ASSESS EE EARNED INCOME FROM LONG TERM CAPITAL GAIN AND CLAIMED EXEMPTION U/S .54B OF THE ACT. EVENTUALLY, THE AO VIDE ORDER U/S.147 R.W.S.143(3 ) OF THE ACT MADE ADDITION OF RS.71,15,531/- ON ACCOUNT OF DISALLOWANCE O F DEDUCTION U/S.54B. IN THE FIRST APPELLATE PROCEEDINGS, HOW EVER, THE CIT(A), RELYING ON VARIOUS JUDGMENTAL LAWS GRANTED RELIEF TO THE ASSESSEE AND HELD THAT THE NOTICE ISSUED U/S.148 OF THE ACT AND T HE CONSEQUENTIAL REASSESSMENT IS BAD IN LAW AND VOID-AB-INITIO. 4. AGGRIEVED WITH THE ORDER OF CIT(A), THE REVENUE IS IN AP PEAL BEFORE US WITH THE AFOREMENTIONED GROUNDS. 3 ITA NO.1192/PUN/2016 DR.ABDULRAFIQUE A. SHAIKH 5. AT THE OUTSET, LD. AR FOR THE ASSESSEE SUBMITTED THAT THE APPEAL FILED BY THE DEPARTMENT IS LIABLE TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT. THE LD. AR POINTED THAT AS PER CBDT CIRCULAR NO.3/ 2018 DATED 11 TH JULY, 2018, THE MONETARY LIMIT FOR FILING OF APPEAL BY THE DEPAR TMENT BEFORE THE TRIBUNAL IS RS.20 LAKHS, THEREFORE, THE APPEA L FILED BY THE DEPARTMENT IS NOT MAINTAINABLE. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE DEFENDE D THE ASSESSMENT ORDER AND PRAYED FOR REVERSING THE FINDINGS O F THE CIT(A). HOWEVER, THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT IN THE PRESENT APPEAL IS LESS THAN RS.20 LAKHS. 7. BOTH SIDES ARE HEARD. ON GOING THROUGH THE FACTS OF T HE CASE AND THE ORDERS OF THE REVENUE, THE TOTAL TAX EFFECT INVOLVED IN THE PRESENT APPEAL WORKS OUT TO RS.16,12,379/-. THE CBDT CIRCULAR NO.3 /2018 DATED 11 TH JULY, 2018 RAISED THE MONETARY LIMIT OF TAX EFFECT FOR FILING OF APPEAL BY THE DEPARTMENT BEFORE THE TRIBUNAL TO RS.20 LAKHS. THE CIRCULAR APPLIES TO THE PENDING APPEALS OF THE DEPARTMEN T BEFORE THE TRIBUNAL TOO. THUS, IN VIEW OF THE CBDT CIRCULAR, WE ARE O F THE OPINION THAT THE PRESENT APPEAL OF THE REVENUE IS LIABLE TO BE DIS MISSED ON ACCOUNT OF LOW TAX EFFECT WITHOUT GOING INTO THE MERITS OF THE CASE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 26 TH DAY OF SEPTEMBER, 2018. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 26 TH SEPTEMBER, 2018. SATISH 4 ITA NO.1192/PUN/2016 DR.ABDULRAFIQUE A. SHAIKH % ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-2, NASHIK 4. THE PR. CIT-2, NASHIK 5. , , ' , / DR, ITAT, B BENCH, PUNE. 6. % / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE