The ITO, Ward-9(2), Ahmedabad V. M/s. Ashutosh Developers, Ahmedabad

ITA 1491/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9848 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 06-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 26-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.1491 AND 1492/AHD/2011 / ASSTT. YEAR: 2006-2007 AND 2007-2008 AND ITA NO.2704/AHD/2012 ASSTT.YEAR 2005-2006 ITO, WARD-9(2) AHMEDABAD. VS M/S.ASHUTOSH DEVELOPERS 15, ABHIKARAM APARTMENT NR. RAJ AVENUE THALTEJ AHMEDABAD. PAN : AAJFA 0847 N ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SMT.SONIA KUMAR, SR.DR ASSESSEE BY : SHRI M.K. PATEL, AR / DATE OF HEARING : 06/01/2016 / DATE OF PRONOUNCEMENT: 13/01/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE HAS FILED THE ABOVE THREE APPEALS AGAIN ST THE ORDERS OF LD.COMMISSIONER INCOME-TAX (APPEALS)-XV, AHMEDABAD DATED 21.9.2012 AND 29.3.2011 PASSED FOR THE ASSTT.YEAR 2005-2006, 2006-2007 AND 2007- 2008. ALL THESE THREE APPEALS ARE DISPOSED OF BY T HIS CONSOLIDATED ORDER. 2. THE COMMON GRIEVANCE OF THE REVENUE IN ALL THESE APPEALS IS THAT THE LD.CIT(A) HAS ERRED IN DIRECTING THE AO TO ALLOW AS SESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IB(1) OF THE ACT AS UNDER : ITA NO.1640/AHD/2011 (3 APPEALS) 2 ASSTT.YEAR AMOUNT (RS.) 2005-2006 26,17,701/- 2006-2007 28,46,436/- 2007-2008 19,25,751/- 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT APPEALS FILED BY THE REVENUE ARE HIT BY THE LATEST CBDT CIR CULAR RESTRICTING THE FILING OF THE APPEAL BEFORE THE TRIBUNAL BY THE REVENUE, W HERE THE TAX EFFECT IS BELOW RS.10 LAKHS, AND AS SUCH THESE THREE APPEALS ARE LIABLE TO BE DISMISSED IN LIMINE . 4. WE FIND THAT THESE APPEALS WERE PRESENTED ON 26. 05.2011. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFEC T BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRE SENT CASE, THE ASSESSED INCOME OF THE ASSESSEE IS OF RS.27,94,890/-, RS.30 ,88,380/- AND RS.19,25,750/- FOR THE 2005-2006, 2006-2007 AND 200 7-2008 RESPECTIVELY. THE TAX EFFECT ON THE IMPUGNED ADDITIONS INDIVIDUAL LY FOR THE RESPECTIVE ASSESSMENT YEARS IN APPEALS IS LESS THAN RS.10 LAKH S. THEREFORE, THE PRESENT APPEALS DESERVE TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AM BIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT S INCE, WHILE HEARING THE APPEALS, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE , IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT TH E TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INST RUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. ITA NO.1640/AHD/2011 (3 APPEALS) 3 SUCH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEALS OF THE REVENUE ARE DISMISSED . 5. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE COURT ON 13 TH JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER