The ITO, Ward-1(1)(2), Ahmedabad V. M/s. Biography Investment Pvt. Ltd., Ahmedabad

ITA 1404/AHD/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5573 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: AFAQ SAIYED
• Keywords: Tax effect; Set aside

Judgement Text

, , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD LOZJH LOZJH LOZJH LOZJH EGKOHJ EGKOHJ EGKOHJ EGKOHJ IZLKN] U; IZLKN] U; IZLKN] U; IZLKN] U;KF KFKF KF;D LNL; , ;D LNL; , ;D LNL; , ;D LNL; ,OA OAOA OA OLHE OLHE OLHE OLHE VGEN] YS[KK LNL; DS LE{KA VGEN] YS[KK LNL; DS LE{KA VGEN] YS[KK LNL; DS LE{KA VGEN] YS[KK LNL; DS LE{KA BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ I.T.A. NO. 1404/AHD/2016 ( / ASSESSMENT YEAR : 2005-06) ITO, WD. 1(1)(2), AHMEDABAD. / VS. BIOGRAPHY INVESTMENT PVT. LTD., 9 TH FLOOR, B. D. PATEL HOUSE, NARANPURA AHMEDABAD 380 013. ./ ./ PAN/GIR NO. : AABCB 6854 F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S. K. DEV, SR. D.R. / RESPONDENT BY : SHRI AFAQ SAIYED, A.R. / DATE OF HEARING 13/11/2018 / DATE OF PRONOUNCEMENT 15/11/2018 !' / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL)-1, AHMEDABAD [CIT(A) IN SHORT] DATED 29-03-2016 ARISIN G IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S.143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961(HERE-IN-AFTER REFERRED TO AS 'THE ACT') DATED 29.03.2016 RELEVANT TO ASSESSMENT YEAR (AY) 2005-06. ITA NO.1404/AHD/2016 ITO VS. BIOGRAPHY INVESTMENT PVT. LTD. A .Y. 2005-06 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE AR E AS UNDER:- 1. THAT THE LD.CIT(A) HAS ERRED IN LAW AND IN FAC TS IN DELETING THE ADDITION OF RS.50,00,000/- MADE ON ACCOUNT OF 'UNPR OVED CASH CREDIT U/S 68.' 2. THAT THE LD.CIT(A) HAS SUBSTANTIALLY ERRED IN N OT APPRECIATING AND CONSIDERING THE FINDING OF A.O. 3. THAT THE LD.CIT(A) HAS SUBSTANTIALLY ERRED IN N OT CONSIDERING THE FACTS THAT THE ASSESSEE HAD FAILED TO PROVE THE CRE DITWORTHINESS OF THE PARTY TO WHOM THE SHARES WERE SOLD AND ALSO FAI LED TO PROVE THE GENUINENESS OF THE TRANSACTION. 4. THAT THE LD.CIT(A) HAS SUBSTANTIALLY ERRED IN N OT CONSIDERING THE FINDINGS OF AO THAT ALL THE 50,000 SHARES ALLOTTED BY THE COMPANY TO THE ASSESSEE HAVE BEEN HELD BY IT UP TO 30.09.20 10 AND THE SAME HAS ACTUALLY BEEN SOLD TO MR. SUVAS BAROT IN F INANCIAL YEAR 2009-10. 5. THAT THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ADDITIO N OF RS.50,00,000/- AS 'UNPROVED CASH CREDIT U/S 68'-CON SIDERING THE FINDINGS IN THE ASSESSMENT ORDER. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER TO THE EXTENT MENTIONED ABOVE SINCE THE ASSESSEE HAS FAILED TO DI SCLOSE HIS TRUE INCOME/BOOK PROFIT. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE REST ORED TO THE ABOVE EXTENT. THE APPELLANT CRAVES, TO LEAVE, TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3. AT THE TIME OF THE HEARING, WE OBSERVE THAT THE TAX EFFECT IN THE APPEAL FILED BY THE REVENUE IS LESS THAN RS. 20 LAC S. AS PER THE CIRCULAR NO. 3 OF 2018 DATED 11/07/2018 ISSUED BY CBDT RECEN TLY ALL PENDING APPEALS FILED BY REVENUE ARE LIABLE TO BE DISMISSED / WITHDRAWN/ NOT PRESSED TO REDUCE THE LITIGATION WHERE THE TAX EFFE CT DOES NOT EXCEED THE ITA NO.1404/AHD/2016 ITO VS. BIOGRAPHY INVESTMENT PVT. LTD. A .Y. 2005-06 - 3 - PRESCRIBED MONETARY LIMIT, I.E., RS.20 LACS. THE R ELEVANT EXTRACT OF THE CIRCULAR IS REPRODUCED BELOW: 2. IN SUPERSESSION OF THE ABOVE CIRCULAR, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MER ITS BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND S LPS/ APPEALS BEFORE SUPREME COURT KEEPING IN VIEW THE MO NETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVE N HEREUNDER: S. NO. APPEALS/ SLPS IN INCOME-TAX MATTERS MONETARY LIMIT (RS.) 1. BEFORE APPELLATE TRIBUNAL 20,00,000 2. BEFORE HIGH COURT 50,00,000 3. BEFORE SUPREME COURT 1,00,00,000 THE MONETARY LIMIT FOR FILING THE APPEALS BY THE RE VENUE BEFORE THE TRIBUNAL HAS BEEN INCREASED TO RS. 20 LACS. IT IS A LSO CLARIFIED IN THE SAID CIRCULAR THAT THE SAID MONETARY LIMIT IS APPLICABLE RETROSPECTIVELY EVEN TO THE APPEALS PENDING BEFORE THE TRIBUNAL. THE CBDT H AS ALSO INSTRUCTED THAT SUCH PENDING APPEALS BELOW THIS SPECIFIED TAX LIMIT OF RS.20 LACS MAY BE WITHDRAWN / NOT PRESSED . IN THE CASE ON HAND, IT WAS NOTICED THAT THE TAX EF FECT ON THE DISPUTED ISSUE RAISED BY THE REVENUE IS CLAIMED TO BE LESS R S.20 LACS. THEREFORE APPEAL OF THE REVENUE IS REQUIRED TO BE DISMISSED IN LIMINE IN TERMS OF THE ABOVE CIRCULAR. ITA NO.1404/AHD/2016 ITO VS. BIOGRAPHY INVESTMENT PVT. LTD. A .Y. 2005-06 - 4 - 4. THE LD. DR FOR THE REVENUE FAIRLY AGREED ON THE APPLICABILITY OF THE CBDT CIRCULAR NO. 3 OF 2018. ACCORDINGLY, THE A PPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. HOWEVER, THE REVENUE IS AT THE LIBERTY TO MOVE THE MISCELLANEOUS APPLICATION T O RECALL THE ORDER IF THE TAX EFFECT EXCEEDS THE THRESHOLD LIMIT OR THE CASE OF THE REVENUE FALLS IN ANY OF THE EXCEPTION PROVIDED IN THE AFORESAID CBDT CIRCULAR IN ANY MANNER. THE MA SHALL BE FILED WITHIN THE PRESCRIBED TIME. HENCE THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 15/11/2018 SD/- SD/- OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 15/11/2018 PRITI YADAV, SR.PS ITA NO.1404/AHD/2016 ITO VS. BIOGRAPHY INVESTMENT PVT. LTD. A .Y. 2005-06 - 5 - !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. %&' ( / CONCERNED CIT 4. ( () / THE CIT(A)-1, AHMEDABAD. 5. +, - ..&' , &' , 01! % ! / DR, ITAT, AHMEDABAD. 6. - 23 4 / GUARD FILE. $ % / BY ORDER, + . //TRUE COPY// &/% () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD