Assistant Commissioner of Income-tax, V. M/s. Suryakant V. Ambarwadikar, Aurangabad

ITA 1220/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5161 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-10-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 06-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E . , , , ! BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 1220/PUN/2016 # # / ASSESSMENT YEAR : 2011-12 ASST. COMMISSIONER OF INCOME TAX, CIRCLE-3, AURANGABAD ....... / APPELLANT / V/S. M/S. SURYAKANT V. AMBARWADIKAR, PROP. GARDEN COURT BAR & RESTAURANT & SURYA LAWNS, GUT NO.103, BEED BYE PASS, AURANGABAD 431 005 PAN : AELPA0578E / RESPONDENT C.O. NO. 50/PUN/2018 (ARISING OUT OF ITA NO. 1220/PUN/2016 # # / ASSESSMENT YEAR : 2011-12 M/S. SURYAKANT V. AMBARWADIKAR, PROP. GARDEN COURT BAR & RESTAURANT & SURYA LAWNS, GUT NO.103, BEED BYE PASS, AURANGABAD 431 005 PAN : AELPA0578E .......CROSS OBJECTOR / V/S. ASST. COMMISSIONER OF INCOME TAX, CIRCLE-3, AURANGABAD APPELLANT IN THE APPEAL ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 08.10.2018 / DATE OF PRONOUNCEMENT : 08.10.2018 2 ITA NO.1220/PUN/2016 & CO NO. 50/PUN/2018 M/S. SURYAKANT V. AMBARWADIKAR / ORDER PER D. KARUNAKARA RAO, AM : THESE ARE THE CROSS APPEALS FILED BY THE REVENUE AND TH E ASSESSEE INVOLVING A.Y. 2011-12. REVENUE FILED THE MAIN APPEAL ITA NO. 1220/PUN/2016 AND ASSESSEE FILED THE CROSS OBJECTION NO . 50/PUN/2018. THEY ARE FILED AGAINST THE ORDER OF CIT(A)- 2, AURANGABAD, PUNE DATED 17-03-2016. WE SHALL FIRST TAKE UP THE APPEAL OF THE REVENUE. ITA NO.1220/PUN/2016 BY REVENUE A.Y. 2011-12 2. GROUNDS RAISED BY THE REVENUE ARE EXTRACTED HERE AS UNDER : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD.CIT(A), AURANGABAD WAS CORRECT IN ADOPTING THE G.P. @42.97% OF SUCH UNRECORDED RECEIPTS TO THE TUNE OF RS.73,66,041/- FOUND DURING THE COURSE OF SURVEY ACTION. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE CIT(A)- 2, AURANGABAD MAY BE VACATED AND THE ORDER OF THE A O MAY BE RESTORED. 3. ON THE FACTS AND CIRCUMSTANCES THE APPELLANT CRA VES LEAVE TO ADD, AMEND OR ALTER ANY GROUNDS OF APPEAL. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE INCLUDE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM THE PROPRIETARY CON CERNS M/S. SURYA LAWNS AND M/S. GARDEN COURT BAR AND RESTAURANT . ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.21,66,19 3/-. THERE WAS SURVEY U/S.133A OF THE ACT IN THE AMBARWADIKA R GROUP OF CASES. VARIOUS BOOKS OF ACCOUNT AND INCRIMINATING DOCUMEN TS WERE IMPOUNDED IN THE CASE OF THE ASSESSEE. AO NOTICED CERTAIN DISCREPANCIES 3 ITA NO.1220/PUN/2016 & CO NO. 50/PUN/2018 M/S. SURYAKANT V. AMBARWADIKAR IN THE ACTUAL RECEIPTS AND THE RETURN OF INCOME FILED IN RES PECT OF M/S. SURYA LAWNS AND M/S. GARDEN COURT BAR & RESTAURANT. AT THE END OF THE ASSESSMENT PROCEEDINGS U/S.143(3) OF THE ACT, THE AO MADE ADDITION OF DIFFERENCE IN BOTH THE CONCERNS MENTIONED ABOVE AS UN DISCLOSED INCOME (RS.73,66,041 + RS.66,62,066). AO ALSO MADE ADDITION O F RS.8,68,239/- ON ACCOUNT OF ELECTRICITY CHARGES. IN THE F IRST APPELLATE PROCEEDINGS, THE CIT(A) GAVE PART RELIEF ON THE ADDITION OF R S.73,66,041/- ON ACCOUNT OF RECORDED RECEIPTS OF M/S. GARDEN COURT BA R & RESTAURANT. HOWEVER, HE CONFIRMED THE OTHER TWO ADDITIONS MADE BY THE AO. 4. AGGRIEVED WITH THE PART RELIEF GIVEN BY THE CIT(A), THE R EVENUE IS IN APPEAL BEFORE US WITH THE GROUNDS EXTRACTED ABOVE. 5. AT THE OUTSET, LD. AR FOR THE ASSESSEE SUBMITTED THA T 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 APPEAL FILED BY THE DEPARTMENT IS NOT MAINTAINABLE. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE DEFENDE D THE ORDER OF THE AO AND PRAYED FOR REVERSING THE FINDINGS OF THE CIT (A) IN THE APPEALS. HOWEVER, THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT IN THE PRESENT APPEAL FILED BY THE DEPARTMENT IS LESS THAN RS.20 LAKHS. 7. BOTH SIDES ARE HEARD. ON GOING THROUGH THE FACTS OF THE CASE AND THE ORDERS OF THE REVENUE, WE FIND THE TOTAL TAX EFFECT INV OLVED IN THE PRESENT APPEAL WORKS OUT TO RS.11,98,362/-, WHICH IS BELOW 20 LAKHS. THE CBDT CIRCULAR NO.3/2018 DATED 11 TH JULY, 2018 RAISED THE MONETARY 4 ITA NO.1220/PUN/2016 & CO NO. 50/PUN/2018 M/S. SURYAKANT V. AMBARWADIKAR LIMIT OF TAX EFFECT FOR FILING OF APPEAL BY THE DEPARTMENT BEFO RE THE TRIBUNAL TO RS.20 LAKHS. THE CIRCULAR APPLIES TO THE PENDING APPEALS OF THE DEPARTMENT BEFORE THE TRIBUNAL TOO. THUS, IN VIEW OF T HE CBDT CIRCULAR, WE ARE OF THE OPINION THAT THE PRESENT APPEAL O F THE REVENUE IS LIABLE TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT WITHOUT G OING INTO THE MERITS OF THE CASE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. WE SHALL NOW TAKE UP THE CROSS OBJECTION FILED BY THE ASSESSEE. CO NO. 50/PUN/2018 A.Y. 2011-12 9. SINCE THE APPEAL OF THE REVENUE IS DISMISSED AS NOT-MAIN TAINABLE ON ACCOUNT OF LOW TAX EFFECT, THE CROSS OBJECTION FILED BY T HE ASSESSEE BECOMES INFRUCTUOUS. AS SUCH, THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS ACADEMIC OR INFRUCTUOUS. 10. IN THE RESULT, THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. 11. TO SUM UP, THE APPEAL OF THE REVENUE AS WELL AS THE C ROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 08 TH DAY OF OCTOBER, 2018. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 08 TH OCTOBER, 2018. SATISH 5 ITA NO.1220/PUN/2016 & CO NO. 50/PUN/2018 M/S. SURYAKANT V. AMBARWADIKAR ' ) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-2, AURANGABAD 4. THE PR.CIT-2, AURANGABAD 5. , , ' , / DR, ITAT, A BENCH, PUNE. 6. % / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.