The ACIT, Circle-6, Ahmedabad V. Shri Jagdishbhai Kanaiyalal Patel, Ahmedabad

ITA 1449/AHD/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7877 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-08-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 12-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV DEV
• Assessee Lawyers: K C THAKERA R
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1449/AHD/2014 (ASSESSMENT YEAR: 2010-11) ACIT, CIRCLE-6, AHMEDABAD V/S JAGDISHBHAI KANAIYALAL PATEL PROPRIETOR OF FAIR DEAL CONSULTANCY 79, VAIBHAV BUGNLOWS, PART-I- II, NEAR SUN & STEP CLUB, MEMNAGAR, AHMEDABAD- 380052 (APPELLANT) (RESPONDENT) PAN: ACMPP1809N APPELLANT BY : SHRI SANJEEV DEV, SR. D.R . RESPONDENT BY : SHRI K. C. THAKER,A.R. ( )/ ORDER DATE OF HEARING : 12 -09-201 8 DATE OF PRONOUNCEMENT : 18 -09-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)- XVI, AHMEDABAD DATED 03.03.2014 PERTAINING TO A.Y. 2010-11, ON THE FOLLOWING GROUNDS: ITA NO. 1449 /AHD/2014 . A.Y. 2010-11 2 I) THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETIN G THE DISALLOWANCE OF RS. 41,79,887/- MADE ON ACCOUNT OF TREATING THE SHO RT TERM CAPITAL GAIN AS PROFITS AND GAINS OF BUSINESS. II) THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACT S IN DIRECTING THE A.O. TO ALLOW THE SET OFF OF SHORT TERM CAPITAL LOSS OF RS. 21,56,861/-. III) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE RECENT CBDT CIRCULAR NO. 3 OF 2018 DATED 11.07. 2018. LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIR CULAR. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF THE RECENT CBDT CIRCULAR NO. 03/2015 IN F.NO.279 /MISC. 142/2007-ITJ (PT) DATED 11 TH JULY 2018, VIDE WHICH IT HAS BEEN DECIDED BY THE B OARD THAT NO DEPARTMENTAL APPEALS SHOULD BE FILED BEFORE THE TRI BUNAL IF THE TAX EFFECT BY VIRTUE OF THE COMMISSIONER OF INCOME-TAX (APPEALS) S ORDER IS BELOW RS. 20 LACS. THE BOARD HAS PROVIDED EXCEPTIONS AT CLAUSE ( 10) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTION S WILL NOT BE APPLICABLE, WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT/RULE IS UNDER CHALLENGE OR WHERE BOARDS ORDER, NOTIFICATION, INS TRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT OR WHERE THE ADDITION RE LATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT T HE PRESENT CASE DOES NOT FALL ITA NO. 1449 /AHD/2014 . A.Y. 2010-11 3 WITHIN THE EXCEPTION CLAUSE AND THE TAX IS LESS THA N RS.20 LACS. THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMIS SED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 18 - 09- 2018 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 18 /09/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD