The ACIT,Mehsana Circle, Mehsana V. Akik Tiles Pvt. Ltd., Mehsana

ITA 1334/AHD/2013

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9334 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P B PARMAR
• Keywords: Retrospective amendment; Tax effect; TDS; Set aside
• Section: 40(a)(ia); 201; 268A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 13 3 4/AHD/2013 / ASSTT. YEAR: 2009 - 2010 ACIT , MEHSANA CIRCLE, MEHSANA. VS. AKIK TILES PVT. LTD., S.NO.1071/74, NANDASAN MEHSANA HIGHWAY, NANDASAN, MEHSANA - 382706. PAN : AACCA3201G (APPLICANT) ( RESPON D ENT ) REVENUE BY : SHRI S.K. DEV , SR.D.R ASSESSEE BY : SHRI P.B. PARMAR A .R / DATE OF HEARING : 28 / 08 / 201 9 / DATE OF PRONOUNCEMENT: 01 / 10 /201 9 / O R D E R PER BENCH : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS), GANDHINAGAR, AHMEDABAD (IN SHORT LD.CIT(A)) DATED 04/02/2013 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED U/S.143(3) OF THE INCOME - TAX ACT 1961, (HERE - IN - AFTER REFERRED TO AS THE ACT ) DATED 28 /12/2011 RELEVANT TO ASSESSMENT Y EAR 2009 - 20 10 . ITA NO.1334/AHD/2013 ASSTT. YEAR 2009 - 1 0 2 THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEALS: 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 55,00,000/ - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF COMMISSION EXPENSES IGNORING THE FACT THAT THE ASSESSEE COMPANY, DURING THE ASSESSEMENT PROCEEDINGS, FAILED TO PROVE THE GENUINENESS OF THE EXPENSES AND FAILED TO ESTABLISH THAT ANY S ERVICE WAS ACTUALLY RENDERED TO THE ASSESSEE COMPANY. 2. THE ID. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.76,73,2707 - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF DEFERRED ADVERTISEMENT EXPENSES WHICH IS FOR MORE THAN ONE YEAR. 3. THE ID. CLT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.6,95,7247 - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE U/S 40(A)(IA) OF THE ACT IGNORING THE FACT THAT THE ASSESSEE, DURING THE ASSESSMENT PROCEEDINGS, FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF NON - TDS OF INTEREST PAYMENT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ID. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEARNED CIT(APPEALS ) MAY BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 2 . AFTER GOING THROUGH THE GROUNDS OF APPEAL AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW, A QUERY WAS RAISED BY THE BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIRCULAR NO. 17 /201 9 DATED 08/08/ 201 9 RESTRICTING THE FILLING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS. 50 LAKHS. IN REPLY TO IT T HE LD. DR DID NOT DISPUTE THE SAME AND LEFT THE ISSUE AT THE DISCRETION OF THE TRIBUNAL WITH THE PRAY TO D ECIDED THE SAME BY LAW. 3 . WE FIND THAT THE APPEAL OF THE REVENUE WAS HEARD ON 22 /0 8/2019. ON 8 /0 8/2019 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 17 OF 2019 UNDER FILE NO. 279/ MISC. 142/2007 - ITJ(PT) R.W. CIRCULAR NO. 3/2018 DATED 11/07/2018 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM THE FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE LD. CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE LD. ITA NO.1334/AHD/2013 ASSTT. YEAR 2009 - 1 0 3 C IT(A) IS LESS THAN RS. 5 0 LAKHS. THE INSTRUCTIONS ARE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO AS HELD BY THIS TRIBUNAL IN THE CASE OF ITO VS. DINESH MADHAVAL PATEL & OTHERS IN ITA 13 98/AHD/2004 FOR THE AY 1998 - 99 VIDE ORDER DATED 14 - 08 - 2019 . IN THE PRESENT CASE, TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAI NST WHICH APPEAL IS FILED , IS LESS THAN RS. 50 LAKHS. FURTHER, THE CASE OF THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX AC T, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED . IT IS ACCORDINGLY DISMISSED . HOWEVER, IT IS OBSERVED THAT IN THE CASE ON RE - VERIFICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR RE VENUE S CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIB UNAL FOR THE RECALL OF THIS ORDER. SUCH AN APPLICATION SHOULD BE FILED WITHIN THE PERIOD PRESCRIBED UNDER THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 4 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . O RDER PRONOUNCED IN THE COURT ON 01/10 / 2019 AT AHMEDABAD. - SD - - SD ( KUL BHARAT ) JUDICIAL MEMBER ( WASEEM AHMED ) ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 01 / 10 /2019 MANISH