The ACIT,GNR Circle, Gandhinagar V. Gujarat Informatics Ltd., Gandhinagar

ITA 1252/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8897 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-09-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 20-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH
• Assessee Lawyers: ANIL R SHAH
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD B BENCH (BEFORE S/SHRI R.V.EASWAR, VICE-PRESIDENT AND D.C. AGRAWAL, ACCOUNTANT MEMBER) ITA NO.1252/AHD/2009 WITH CO. NO.105/AHD/2009 [ASSTT YEAR : 2002-2003] ACIT, GANDHINAGAR GANDHINAGAR. VS. GUJARAT INFORMATICS LTD. BLOCK NO.1, 8 TH FLOOR, UDYOG BHAVAN SECTOR 11, GANDHINAGAR. REVENUE BY : SMT.NEETA SHAH ASSESSEE BY : SHRI ANIL R. SHAH O R D E R PER R.V.EASWAR, VICE-PRESIDENT : THIS APPEAL IS FILED BY THE DEPARTMENT AND CROSS-OBJECTION IS BY THE ASSESSEE. THEY RELATE TO THE ASSESSMENT YEAR 2002-2003. THE ASSESSEE IS A COMPA NY ENGAGED IN THE BUSINESS OF DEVELOPMENT OF INFORMATION TECHNOLOGY. THE APPEAL AND THE CROSS- OBJECTION ARISE OUT OF THE ASSESSMENT ORDER PASSED ON 6-11-2007 UNDER SECTION 143(3)/147 OF THE INCOME TAX ACT. 2. IN THE APPEAL BY THE DEPARTMENT THE ONLY GROUND IS THAT THE CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF THE PRIOR PERIOD EXPENSES OF RS.1,73,608/-. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE RAISED A PRELIMINARY OBJECTION TO THE EFFE CT THAT THE APPEAL IS NOT MAINTAINABLE SINCE THE TAX EFFECT WOULD BE MUCH LES S THAN RS.1,00,000/-. WE ARE INCLINED TO UPHOLD THE OBJECTION. THE APPEAL HAS BEEN FILED ON 20-4-2009. ACCORDING TO THE CIRCULAR ISSUED BY THE CBDT IN VOG UE AT THE TIME WHEN THE APPEAL WAS FILED, THE TAX EFFECT SHOULD BE AT LEAST RS.2,00,000/- IN THE CASE OF APPEALS FILED BY THE DEPARTMENT BEFORE THE TRIBUNAL . IN THE CASE BEFORE US, THE DISALLOWANCE ITSELF IS LESS THAN RS.2,00,000/- AND CONSEQUENTLY THE TAX EFFECT PAGE - 2 ITA NO.1252/AHD/2009 WITH CO. NO.105/AHD /2009 -2- WILL BE MUCH LESS, THE APPEAL IS THEREFORE FILED CO NTRARY TO THE INSTRUCTION NO.5 OF THE 2008 DATED 15-5-2008 ISSUED BY THE CBDT. IT IS THEREFORE NOT MAINTAINABLE. IN PARA-8 OF THE INSTRUCTION CERTAIN EXCEPTIONS HAVE BEEN PROVIDED FOR AND THEY ARE (A) WHERE THE CONSTITUTIO NAL VALIDITY OF THE ACT OR RULE ARE UNDER CHALLENGE, (B) WHERE THE BOARDS ORDER, N OTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES OR (C) THE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPA RTMENT. NONE OF THESE THREE EXCEPTIONS HAVE BEEN CANVASSED BEFORE US ON BEHALF OF THE REVENUE. WE THEREFORE HOLD THAT THE APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE AND DISMISS THE SAME AS SUCH. 3. THE CROSS-OBJECTION FILED BY THE ASSESSEE HAS NO T BEEN PRESSED AND THEREFORE THE SAME IS DISMISSED. 4. IN THE RESULT BOTH THE APPEAL FILED BY THE DEPAR TMENT AND THE CROSS- OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 30TH SEPTEMBER, 2009. SD/- SD/- (D.C. AGRAWAL) ACCOUNTANT MEMBER (R.V.EASWAR) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 30-09-2009 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD