Shri Rajendra Jethabhai Keshwani, Ahmedabad V. The CIT, Ahmedabad-1, Ahmedabad

ITA 1483/AHD/2013

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5317 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 11-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: M K PATEL
• Keywords: Retrospective amendment; Tax effect
• Section: 201; 268A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS MADHUMITA ROY, JUDICIAL MEMBER ./ ITA NO. 1483/AHD/2013 & ./ ITA NO. 520/AHD/2016 / ASSTT. YEAR: 2008 - 2009 SHRI RAJENDRA JETHABHAI KESHWANI, 2353, KALUPUR KOT NI RANG, OPP. NEW FRUIT MARKET KALUPUR, AHMEDABAD - 380 001. PAN: ADVKP9634Q VS . THE COMMISSIONER OF INCOME TAX, AHMEDABAD - 1 (APPLICANT) (RESPONENT) ASSESSEE BY : SHRI M.K. PATEL, AR REVENUE BY : SHRI LALIT P. JAIN, SR. DR / DATE OF HEARING : 10 / 10 / 201 8 / DATE OF PRONOUNCEMENT: 24 / 10 /201 8 / O R D E R PER MS MADHUMITA ROY, JUDICIAL MEMBER : THESE ARE TWO APPEALS FILED BY THE ASSESSEE AND THE REVENUE FOR THE ASSESSMENT YEAR 2008 - 2009. ASSESSEE IN HIS APPEAL CHALLENGES THE ORDER OF THE COMMISSIONER OF INCOME TAX, AHMEDABAD - 1, PASSED U/S.263 OF THE INCOME TAX ACT 1963 DATED 28/03/2013, WHILE THE REVENUE CH ALLENGES THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX, APPEALS - 10 AHMEDABAD , DATED 12/01/2016 . ITA NO. 1483/AHD/2013 & 520/AHD/2016 A.Y. 2008 - 2009 2 2. ITA NO.1483/AHD/2013 FOR ASSESSMENT YEAR 2008 - 20 09 . 3. THE INSTANT APPEAL HAS BEEN FILED BY THE ASSESSEE, T HE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE DOES NOT WANT TO PROCEED WITH THE APPEAL AND THE REFORE AND THE SAME IS NOT PRESSED FOR ADJUDICATION. IN VIEW OF THIS SUBMISSION OF LEARNED COUNSEL FOR THE ASSESSEE AT B AR, THE APPEAL OF THE ASSESSEE STA NDS DISMISSED AS NOT PRESSED . 4 . A PPEAL NO.520/AHD/2016 FOR ASSESSMENT YEAR 2008 - 2009. 5 . AT THE OUTSET, AFTER GOING THROUGH THE GROUN DS 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.3/2018 DATED 11.7.2018 RESTRICTING THE FILL ING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKHS, THE LD.DR DID NOT DISPUTE THE SAME AND SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACCORDANCE WITH LAW. 6 . WE FIND THAT THE APPEAL OF THE REVENUE IS PRESENTED ON 03 . 03 .201 6 . ON 11.7.2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007 - ITJ(PT) PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY V IRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, TAX EFFECT ON THE T OTAL INCOME ASSESSED MINUS THE TAX THAT WOULD ITA NO. 1483/AHD/2013 & 520/AHD/2016 A.Y. 2008 - 2009 3 HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FILED, IS LESS THAN RS.20 LAKHS. FURTHER, THE CASE OF THE REVENUE DOES NOT FALL WI THIN 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 ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS ACCORDINGL Y DISMISSED. 7 . HOWEVER, IT IS OBSERVED THAT IN CASE ON RE - VERIFICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUE S CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. HENCE , THE APPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT . 8 . IN THE RESULT, THE APPEAL OF THE AS SESSEE AND THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 24 /10/2018 AT AHMEDABAD. - SD - - SD - ( WASSEM AHMED ) ACCOUTANT MEMBER ( MS MADHUMITA ROY ) JUDICIAL MEMBER AHMEDABAD; DATED 24 / 10 /201 8 MANISH