The ACIT, Circle-7, Ahmedabad V. Smt. Shushilaben Gopaldas Pachishia, Ahmedabad

ITA 1495/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9620 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 11-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 26-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAMES KUREIN
• Keywords: Business income; Retrospective amendment; Tax effect

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE S/SHRI RAJPAL YADAVJM, AND MANISH BORAD, AM ./ITA.NO.1495/AHD/2011_ ( / ASSTT YEAR : 2006-07) ACIT, CIRCLE-7, AHMEDABAD. VS. SMT. SUSHILABEN GOPALDAS PACHISHIA, 22, SOMESHWAR BUNGLOWS, B/H SHYAMAL ROW HOUSE, SATELITE ROAD, AHMEDABAD. PAN ACIPP 6096M (APPELLANT) (RESPONDENT) / APPELLANT BY: MR. JAMES KUREIN, SR.DR / RESPONDENT BY: NONE / DATE OF HEARING 11/02/2016 /DATE OF PRONOUNCEMENT 11-02-2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD.COMMISSIONER INCOME-TAX (APPEALS)-VI, AHMEDABAD DATED 16.03.2011 PASSED FOR THE ASSTT.YEAR 2006-07. 2. THE GRIEVANCES OF THE REVENUE, AS PER GROUNDS OF APPEAL ARE AS FOLLOWS :- ITA.NO.1495/AHD/2011 - 2 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE AO TO TREAT THE INCOME OF RS.17,49,176/- AS SHORT TERM CA PITAL GAIN AS CLAIMED BY THE ASSESSEE, INSTEAD OF BUSINESS INCOME , AS ASSESSED BY THE AO. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A), OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . CIT(A) MAY BE SET ASIDE AND THAT OF THE ORDER OF THE AO BE RESTORED. 3. THIS APPEAL WAS PRESENTED ON 26.5.2011. ON 10.1 2.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PR OHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRU CTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. THE TAX EF FECT ON DELETION OF THIS TOTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AMB IT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVE D THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE 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.1495/AHD/2011 - 3 TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, TH E APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 11 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 11/02/2016 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , ,012 /DR,ITAT, AHMEDABAD, 6. .3 45 / GUARD FILE. ) ' / BY ORDER, ' (0 (ASSTT.REGISTRAR) ITAT, AHMEDABAD ITA.NO.1495/AHD/2011 - 4 1. DATE OF DICTATION .. : 11/2/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 11/2/2016 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 DICTATING MEMBER FO R 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 12/2/16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNAT URE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER