The ITO, Ward-7(2), Ahmedabad V. Smt. Niketa Sanjay Shah, Ahmedabad

ITA 1262/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9233 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: M K PATEL
• Keywords: Business income; Retrospective amendment; Tax effect

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.1262/AHD/2012 / ASSTT. YEAR: 2008-2009 ITO, WARD-7(2) AHMEDABAD. VS SHRI NIKETA SANJAY SHAH 23, SHIVALIK VILLA AMBALI BOPAL ROAD 380 058. BOPAL, AHMEDABAD. PAN : ACKPS 9509 G ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI NARENDRA SINGH, SR.DR ASSESSEE BY : SHRI M.K. PATEL, AR / DATE OF HEARING : 09/03/2016 / DATE OF PRONOUNCEMENT: 09/03/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LD.COMMISSIONER INCOME-TAX (APPEALS)-X, BARODA DATE D 28.3.2012 PASSED FOR THE ASSTT.YEAR 2008-09. 2. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT TH E LD.CIT(A) HAS ERRED IN DIRECTING THE AO TO TREAT THE INCOME OF RS.13,42,71 9/- FROM THE SALE OF SHARES/MUTUAL FUNDS AS SHORT TERM CAPITAL GAIN, INS TEAD OF BUSINESS INCOME. ITA NO.1262/AHD/2012 2 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF RECEN T CBDT CIRCULAR RESTRICTING THE FILING OF APPEAL BEFORE THE TRIBUNA L, WHERE TAX EFFECT IS BELOW RS.10 LAKHS. THE LD.DR, COULD NOT CONTROVERT THE AB OVE SUBMISSIONS OF THE ASSESSEE NOR DISPUTE THE APPLICATION OF THE CBDT CI RCULAR CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE. 4. ON DUE CONSIDERATION OF THE SUBMISSIONS OF THE B OTH THE PARTIES, WE FIND THAT THE APPEAL WAS PRESENTED ON 11.6.2012. ON 10. 12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST T HE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE ASSESSED INCOME OF THE ASS ESSEE IS RS.22,25,090/- AND THE IMPUGNED ADDITION IS OF RS.13,42,719/-, AND THE REFORE, TAX EFFECT ON THE IMPUGNED ADDITION WOULD BE LESS THAN RS.10 LAKHS, A ND THEREFORE, THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED BEIN G TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. FURTHER, THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END O F THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIB ERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR ITA NO.1262/AHD/2012 3 YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APP EAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 9 TH MARCH, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER