The ITO, Ward-8(2), Ahmedabad V. M/s. Surbhi Milkfood & Beverage Ltd., Ahmedabad

ITA 1222/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9800 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-12-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 05-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: M J SHAH
• Keywords: Depreciation; Additional evidence; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD - , , BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ I.T.A. NO.1222/AHD/2012 ( / ASSESSMENT YEAR : 2006-07) THE ITO WARD-8(2) AHMEDABAD / VS. SURBHI MILK FOODS & BEVERAGES LTD. 6, ADITYA BUNGLOWS, OPP. SAL HOSPITAL DRIVE-IN-ROAD, THALTEJ, AHMEDABAD 380 054 $ ./ ./ PAN/GIR NO. : AAECS 8430 R ( $' / APPELLANT ) .. ( ()$' / RESPONDENT ) $' * / APPELLANT BY : SHRI S.L. CHANDEL, DR ()$' + * / RESPONDENT BY : SHRI M.J. SHAH, AR ,- + . / DATE OF HEARING 17/12/2015 /0 + . / DATE OF PRONOUNCEMENT 08/01/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHMEDAB AD [CIT(A) IN SHORT] DATED 30/03/2012 PERTAINING TO ASSESSMEN T YEAR (AY) 2006-07. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- ITA NO.1222/AHD /2012 ITO VS. SURBHI MILK FOODS & BEVERAGES LTD. ASST.YEAR 2006-07 - 2 - 1). THE LD. COMMISSIONER OF INCOME-TAX (APPEA LS)-XIV, AHMEDABAD ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF DEPRECIATION ON BOT TLES AND CRATES, AMOUNTING TO RS.11,08,562/- MADE BY THE ASSESSING OFFICER. 2). THE LD. COMMISSIONER OF INCOME-TAX (APPEA LS)-XIV, AHMEDABAD ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF DEPRECIATION ON GUJ ARAT ELECTRICITY BOARD (GEB) DEPOSITS TO THE EXTENT OF RS.41,461/-. 3). THE LD. COMMISSIONER OF INCOME-TAX (APPEA LS)-XIV, AHMEDABAD ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.42,627/- OUT OF OVERALL PENALTY EXPENSES OF RS.2,19,627/-. 4). THE LD. COMMISSIONER OF INCOME-TAX (APPEA LS)-XIV, AHMEDABAD HAS ERROR IN LAW AND ON FACTS IN ADMITTING ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE IT. RULES. 5). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, AHMEDABAD OUGHT TO HAVE UPHELD THE O RDER OF THE ASSESSING OFFICER. 6). IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XIV, AHMEDABAD MAY BE SET-A-SIDE AND THAT OF THE ORDER O F THE ASSESSING OFFICER BE RESTORED. 2. IN THIS APPEAL, TAX EFFECT IS LESS THAN RS.10 L ACS. THE CENTRAL BOARD OF DIRECT TAXES (CBDT) HAS ISSUED A CIRCULAR NO.21/2015 DATED 10 TH DECEMBER-2015. THE RELEVANT EXTRACTS OF THE AFORE SAID CIRCULAR ARE AS FOLLOWS:- 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S NO APPEALS IN INCOME-TAX MATTERS MONETARY LIMI T (IN RS) 1. BEFORE APPELLATE TRIBUNAL 10,00,000/- 2. BEFORE HIGH COURT 20,00,000/- 3. BEFORE SUPREME COURT 25,00,000/- IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETARY LIMIT S PRESCRIBED ITA NO.1222/AHD /2012 ITO VS. SURBHI MILK FOODS & BEVERAGES LTD. ASST.YEAR 2006-07 - 3 - ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECI DED ON MERITS OF THE CASE. 4. FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERE NCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT W OULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST W HICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS D ISPUTED ISSUES). HOWEVER THE TAX WILL NOT INCLUDE ANY INTEREST THERE ON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUT E. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUT E, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RE TURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENA LTY ORDERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EF FECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTE D ISSUES IN THE CASE OF EVERY ASSESSEE. LF, IN THE CASE OF AN ASSES SEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT Y EAR, APPEAL, CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EX CEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. I N OTHER WORDS, HENCEFORTH, APPEALS CAN BE FILED ONLY WITH REFERENC E TO THE TAX EFFECT IN THE RELEVANT ASSESSMENT YEAR. HOWEVER, IN CASE OF A COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTH ORITY, WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON I SSUES IN MORE THAN ONE ASSESSMENT YEAR, APPEAL SHALL BE FILE D IN RESPECT OF ALL SUCH ASSESSMENT YEARS EVEN IF THE TAX EFFEC T IS LESS THAN THE PRESCRIBED MONETARY LIMITS IN ANY OF THE YEAR(S ), IF IT IS DECIDED TO FILE APPEAL IN RESPECT OF THE YEAR(S) IN WHICH TAX EFFECT EXCEEDS THE MONETARY LIMIT PRESCRIBED. IN CASE WHER E A ITA NO.1222/AHD /2012 ITO VS. SURBHI MILK FOODS & BEVERAGES LTD. ASST.YEAR 2006-07 - 4 - COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE A SSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY. 2.1. IN VIEW OF THE ABOVE CBDT CIRCULAR, THIS APPEA L IS NOT MAINTAINABLE BEFORE THIS TRIBUNAL SINCE THE TAX EFF ECT IS LESS THAN THE PRESCRIBED LIMIT RUPEES TEN LACS. 3. THE LD.SR.DR HAS CONCEDED THE FACT OF ABOVEMEN TIONED CIRCULAR. HOWEVER, HE SUBMITS THAT, IN CASE, IF IT IS NOTICED SUBSEQUENTLY THIS APPEAL FALLS UNDER THE EXEMPTIONS OF ANY CLAUSE OF THE AFO RESAID CIRCULAR, A LIBERTY BE GRANTED TO REVENUE FOR APPROACHING THIS TRIBUNAL FOR SEEKING RECALLING OF THE ORDER. 4. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. SINCE ADMITTEDLY THE TAX EFFECT IN THIS APPEAL IS LESS TH AN THE PRESCRIBED LIMIT, THEREFORE THIS APPEAL IS DISMISSED AS NOT MAINTAINA BLE. HOWEVER, IT IS CLARIFIED THAT IN CASE, THE REVENUE FINDS THAT ANY OF THE GROUND OF THE APPEAL FALLS WITHIN THE EXCEPTIONAL CLAUSE OR IF TH ERE IS ANY ARITHMETICAL ERROR IN COMPUTING THE TAX EFFECT, THE REVENUE WOUL D BE AT LIBERTY TO FILE APPROPRIATE APPLICATION FOR RECALLING THE TRIBUNAL S ORDER. 4.1. UNDER THE IDENTICAL FACTS AND CIRCUMSTANCES, T HE COORDINATE BENCH (ITAT A-1 BENCH AHMEDABAD IN ITA NO.302/AHD/2014 FOR AY 1994- 95 AND TWO-FIFTY OTHERS (AND 7 COS) IN THE CASE OF DY.CIT VS. SOMA TEXTILES & INDUSTRIES LTD. AND OTHERS VIDE ORDER D ATED 15/12/2015 HAS ITA NO.1222/AHD /2012 ITO VS. SURBHI MILK FOODS & BEVERAGES LTD. ASST.YEAR 2006-07 - 5 - ALSO DISMISSED THE SIMILAR APPEALS. THEREFORE, TAK ING A CONSISTENT VIEW, WE HEREBY DISMISS THE APPEAL OF THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED IN LIMINE . ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 8 TH DAY OF JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( MANISH BORAD ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 08/ 01 /2016 4..., ,.../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ()$' / THE RESPONDENT. 3. 56 7 / CONCERNED CIT 4. 7 ( ) / THE CIT(A)-XIV, AHMEDABAD 5. 8,9 (56 , . 560 , / DR, ITAT, AHMEDABAD 6. 9;< =- / GUARD FILE. / BY ORDER, )8 ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 21.12.2015 (COPIED MATTER) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..21.12.2015 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.8.1.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.1.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER