The ITO, Ward-1(2)(5), Ahmedabad V. Shri Paramjitsingh Chandrasinh Bhatia, Ahmedabad

ITA 1412/AHD/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8647 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHESH JIWDE
• Assessee Lawyers: P C BHATIA A R
• Keywords: Audit objection; Retrospective amendment; Non-deduction of tax; Tax effect

Judgement Text

, *,L *,L*,L *,L- -- -,E ,E,E ,E- -- -LH* LH*LH* LH* IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD EKUHK EKUHK EKUHK EKUHK CKSJM CKSJM CKSJM CKSJM BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI, MANISH BORAD, ACCOUNTANT MEMBER ITA NO.1412/AHD/2016 & CROSS OBJECTION NO. 90/AHD/2016 (IN ITA NO.1412/AHD/2016) ( / ASSESSMENT YEAR: 2009-10) INCOME TAX OFFICER, WARD-1(2)(5), A-101, 1 ST FLOOR, PRATYAKSH KAR BHAVAN, PANJRAPOLE, AMBAWADI, AHMEDABAD - 380015 VS. SHRI PARAMJITSINGH CHANDRASINH BHATIA, 60, SEVASHRUTI 2, NR. HARGOVAN PARK SOCIETY, MOTERA, AHMEDABAD - 380004 ! PAN/GIR NO. : AEFPB 6611 P ( ' / APPELLANT ) .. ( #' RESPONDENT ) & CROSS OBJECTOR '$ APPELLANT BY : SHRI MAHESH JIWDE, SR.D.R. #'%$ / RESPONDENT BY : SHRI P. C. BHATIA, A.R. & '(%)* / DATE OF HEARING 05/09/2017 +,-.%)* / DATE OF PRONOUNCEMENT 08/09/2017 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE ALONG WITH C ROSS OBJECTION FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT( A)-IV, AHMEDABAD DATED 10/03/2016 PERTAINING TO A.Y. 2009-10. ITA NO.1412 /AHD/2016 & CO-90/AHD/2016 ITO VS. SHRI. PARAMJITSINGH CHANDRASINH BHATIA ASST.YEAR 2009-10 - 2 - 2. FIRST WE TAKE UP DEPARTMENTS APPEAL IN ITA NO.1 412/AHD/2016 FOR ASST. YEAR 2009-10, ON THE FOLLOWING GROUNDS: (I) THAT THE LD. CIT(A) HAS SUBSTANTIALLY ERRED IN DELE TING THE ADDITION OF RS.1,01,167/- OUT OF THE TOTAL ADDITION OF RS.5,23, 913/-. (II) THAT THE LD. CIT(A) HAS SUBSTANTIALLY ERRED IN DIRE CTING THE AO TO DELETE THE REMAINING ADDITION SUBJECT TO PRODUCTION OF CER TIFICATES FROM THE PAYEES THAT THE AMOUNT HAS BEEN TAKEN INTO THEIR IN COME. (III) THAT THE LD. CIT(A) HAS SUBSTANTIALLY ERRED IN TAKI NG THE AMENDMENT MADE IN THE SECTION 40(A)(IA) OF THE ACT TO HAVE RE TROSPECTIVE EFFECT IN SPITE OF THE FACT THAT THE ACT CLEARLY SYS THAT THE AMENDMENTS IS EFFECTIVE W.E.F. 01/04/2013. 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 OFFICER T O THE EXTENT MENTIONED ABOVE SINCE THE ASSESSEE HAS FAILED TO DISCLOSE 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 RESTORED TO TH E ABOVE EXTENT. THE APPELLANT CRAVES, TO LEAVE, TO AMEND OR ALTER ANY GROUND OR A DD A NEW GROUND WHICH MAY BE NECESSARY. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCO UNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO.21 OF 2015 DATED 10 .12.2015. THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT THE TAX EFFECT IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBD T CIRCULAR. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 I N F.NO.279/MISC. ITA NO.1412 /AHD/2016 & CO-90/AHD/2016 ITO VS. SHRI. PARAMJITSINGH CHANDRASINH BHATIA ASST.YEAR 2009-10 - 3 - 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WH ICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE CO MMISSIONER OF INCOME- TAX (APPEALS)S ORDER IS BELOW RS.10 LACS, THEN THA T ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIO NS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLIC ABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR AD DITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UN DISCLOSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT THE PRESEN T CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THA N RS.10 LACS. THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE A ND HENCE DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED IN LIMINE. 6. NOW WE TAKE UP THE ASSESSEES CROSS OBJECTION IN CO NO.90/AHD/2016 (IN ITA NO.1412/AHD/2016) FOR THE A. Y.2009-10, ON THE FOLLOWING GROUNDS: (I). THAT THE LD. ITO HAS ACCEPTED THE LD. CIT(A) O RDER DATED 10 TH MARCH, 2016 BY DELETING THE ADDITION OF RS.1,01,167/- OUT OF TOTAL ADDITION OF RS.5,23,913/- BY ISSUING ORDER GIVING EFFECT DATED 16/05/2016 AND THEREFORE GROUND NO.1, 2 & 3 RAISED BY THE INCOME T AX OFFICER IS VOID AND BAD IN LAW. (II). THAT THE ASSESSEE IS AUTHORIZED BY LAW TO PRO DUCE THE CERTIFICATE FROM THE LOANER AS REQUIRED U/S.40(A)(IA) OF I.T. ACT TO AVOID THE ADDITION OF NON-DEDUCTION OF TAX OUT OF PAYMENT OF INTEREST. (III). THAT THE LD. ASSESSING OFFICER HAS NOT GIVEN SUFFICIENT TIME TO PRODUCE THE CERTIFICATE U/S.40(A)(IA) OF I.T. ACT DURING TH E ASSESSMENT. THE ITA NO.1412 /AHD/2016 & CO-90/AHD/2016 ITO VS. SHRI. PARAMJITSINGH CHANDRASINH BHATIA ASST.YEAR 2009-10 - 4 - ASSESSEE PREFERRED APPEAL TO CIT(A) AND THEREFORE, THE GROUND RAISED BY ITO IS AGAINST IT ACT & LAW. (IV). THE PROVISION OF SECTION 40(A)(IA) IS DECLATO RY AND CURATIVE IN NATURE AND HAS RETROSPECTIVE EFFECT FROM 01/04/2005 THOUGH THE AMENDMENT IS MADE W.E.F. 01/04/2013. (V). THAT THE ASSESSEE SHOULD NOT BE PENALIZED PURE LY ON THE TECHNICAL GROUNDS WHEN THE LEGAL CURATIVE ACTION IS AVAILABLE . 7. SO FAR CONNECTED APPEAL OF CROSS OBJECTION IN IT A NO.1412/AHD/2016 FOR ASST. YEAR 2009-10 HAS BEEN DI SMISSED BECAUSE OF TAX EFFECT AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE, THEREFORE, ASSESSEE DOES NOT WANT TO PRESS HIS CO. IN THE RESU LT, CO IS ALSO DISMISSED AS NOT PRESSED. 8. IN THE RESULT, DEPARTMENTS APPEAL IN ITA NO.141 2/AHD/2016 IS DISMISSED AND ASSESSEES CROSS OBJECTION NO.90/AHD/ 2016 IS ALSO DISMISSED AS NOT PRESSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 08 / 0 9 /201 7 SD/- SD /- EKUHK CKSJM EKUHK CKSJM EKUHK CKSJM EKUHK CKSJM EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YS[KK LNL; U;KF;D LNL; YS[KK LNL; U ;KF;D LNL; YS[KK LNL; U ;KF;D LNL; YS[KK LNL; U ;KF;D LNL; ( MANISH BORAD ) (MAHAVIR PRASA D) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 08/09/2017 PRITI YADAV, SR. PS ITA NO.1412 /AHD/2016 & CO-90/AHD/2016 ITO VS. SHRI. PARAMJITSINGH CHANDRASINH BHATIA ASST.YEAR 2009-10 - 5 - !'# $#! COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 012) & 3) / CONCERNED CIT 4. & 3) 45 / THE CIT(A)-IV, AHMEDABAD. 5. 678 )'12 *12. 0 / DR, ITAT, AHMEDABAD 6. 89:( GUARD FILE. % & / BY ORDER, #6) ) //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION 06/09/2017 (DICTATION-PAD 1 PAGE S ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 07/09/2017 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. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 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