The ACIT, Circle-7, Ahmedabad V. Smt. Sanyuktaben J.Shah, Ahmedabad

ITA 1494/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9424 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 26-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAMES KUREIN
• Assessee Lawyers: S N DEVETIA
• Keywords: Business income; Tax effect; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM & MANISH BORAD, AM . ITA NO.1494/AHD/2011 ALONG WITH CO NO.175/AHD/2011 ASST. YEAR 2006-07 ACIT, CIR-7, AHMEDABAD. VS SMT. SANYUKTABEN J. SHAH, 2/16, SHYAMAL ROW HUSE, 132 FT. RING ROAD, SATELLITE, AHMEDABAD. (APPELLANT) (RESPONDENT) PA NO. AYUPS 2506D APPELLANT BY MR. JAMES KUREIN, SR.DR RESPONDENT BY SHRI S. N. DEVETIA, AR DATE OF HEARING: 12/02/2016 DATE OF PRONOUNCEMENT: 02/03/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THE REVENUE HAS FILED THE APPEAL AND ASSESSEE HAS FILED THE CROSS OBJECTION AGAINST THE ORDER OF CIT(A)-VI, AHM EDABAD DATED 24/03/2011 PASSED FOR ASST. YEAR 2006-7. 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT( A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO TREAT THE INCOME OF RS.26,48,754/- ITA NO.1494/AHD/2011 ALONG WITH CO NO.175/AHD/2011 ASST. YEAR 2006-07 2 AS SHORT TERM CAPITAL GAIN AS CLAIMED BY THE ASSESS EE, INSTEAD OF BUSINESS INCOME, AS ASSESSED BY THE ASSESSING OFFIC ER. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THIS APPEAL WAS PRESENTED O N 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 EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.1 0 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSP ECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. THE TAX EFFECT ON DELETION OF THIS T OTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INST RUCTIONS. THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVID ED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, W HILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE , IN CASE, ON RE- VERIFICATION AT THE END OF THE AO, IT CAME TO THE N OTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCE PTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE ITA NO.1494/AHD/2011 ALONG WITH CO NO.175/AHD/2011 ASST. YEAR 2006-07 3 TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE AB OVE, THE APPEAL OF THE REVENUE BEING NON-MAINTAINABLE, IS DISMISSED. 4. AS FAR AS THE C.O. IS CONCERNED, THE REGISTRY HA S POINTED OUT THAT THE CO IS TIME BARRED BY 22 DAYS. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY WHEREIN IT HAS PLEADED THAT THE CO COULD NOT BE FILED IN TIME BECAUSE THE ASSESSEE HAD GONE ON PILGRIMAGE TO PALITANA AND COULD NOT SIGN THE PAPER S. ASSESSEE DUE TO UNAVAILABILITY OF RELIGIOUS TOUR WHICH IS NEITHE R INTENTIONAL NOR DELIBERATE AND IF THE DELAY IS NOT CONDONED, THE AP PLICANT WILL SUFFER IRREPARABLE LOSS AND INJURY. ON THE OTHER HAND, IF THE DELAY IS CONDONED, THE RESPONDENT WILL NOT SUFFER IN ANY WAY . THEREFORE THE DELAY CAUSED DUE TO GENUINE AND BONA FIDE REASONS I S REQUIRED TO BE CONDONED IN THE INTEREST OF JUSTICE AND ENQUIRY. TH E ASSESSEE SUBMITTED THAT THE DELAY WAS CAUSED DUE TO GENUINE AND BONA FIDE REASONS AND THEREFORE THE DELAY MAY KINDLY BE CONDO NED. 5. THE LD. DR HAS NO OBJECTION IF THE DELAY IS COND ONED. ITA NO.1494/AHD/2011 ALONG WITH CO NO.175/AHD/2011 ASST. YEAR 2006-07 4 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE DEL AY IS FOR A VERY SHORT PERIOD AND THE REASON PUT FORTH BY THE ASSESS EE IS ALSO GENUINE. THEREFORE, WE CONDONE THE DELAY. 7. SINCE THE APPEAL OF REVENUE ITSELF IS HELD TO BE NON- MAINTAINABLE, THE VERY FOUNDATION OF THE CROSS OBJE CTION CEASES TO HOLD GOOD IN LAW AND THEREFORE THE CROSS OBJECTION IS ALSO DISMISSED. 8. IN THE RESULT, THE APPEAL AND THE CROSS OBJECTIO N BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02 /03/2016 SD/- SD/- (RAJPAL YADAV) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : _2/03/2016 MAHATA/- ITA NO.1494/AHD/2011 ALONG WITH CO NO.175/AHD/2011 ASST. YEAR 2006-07 5 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION:12/02/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 15/02/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 2/3/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: