The DCIT, Circle-1, Ahmedabad V. M/s. Adani Wilmar Ltd, Ahmedabad

ITA 1530/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6141 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 28-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA.NO.1530/AHD/2015 WITH CO NO.120/AHD/2015 / ASSTT. YEAR: 2010-11 DCIT, CIR.1(1) AHMEDABAD. VS M/S.ADANI WILMAR LTD. FORTUNE HOUSE NR. ADANI HOUSE MITHAKHALI CROSS RAODS NAVRANGPURA AHMEDABAD 380 009. PAN : AABCA 8056 G ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI PRASOON KABRA, SR.DR ASSESSEE BY : SHRI P.M.MEHTA WITH SHRI G.M. THAKKAR, ARS. / DATE OF HEARING : 24/01/2018 / DATE OF PRONOUNCEMENT: 01 /02/2018 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST OR DER OF LD.CIT(A)-6, AHMEDABAD DATED 24.3.2015 PASSED FOR THE ASSTT.YEAR 2010-11. 2. REVENUE HAS RAISED MAINLY TWO GROUNDS OF APPEAL, BY WHICH, IT HAS CHALLENGED ACTION OF THE LD.CIT(A) IN DELETING ADJU STMENT OF DISALLOWANCE MADE U/S.14A R.W.S. 8D WHILE COMPUTING BOOK PROFIT U/S.115JB OF THE ACT AND THAT OF DELETING ADDITION OF RS.4201/- BEING UNUTIL IZED CENVAT CREDIT. ITA NO.1530/AHD/2015 WITH CO 2 3. AT THE VERY OUTSET, THE LD.COUNSEL FOR THE ASSES SEE HAS DRAWN OUR ATTENTION TOWARDS RECENT CBDT CIRCULAR RESTRICTING FILING OF APPEAL BY THE REVENUE BEFORE THE TRIBUNAL WHERE TAX EFFECT IS BEL OW RS.10 LAKHS. HE POINTED OUT THAT TAX EFFECT IN THE PRESENT CASE IS BELOW MONETARY LIMIT PRESCRIBED BY THE CBDT, AND THEREFORE, APPEAL OF TH E REVENUE IS LIABLE TO DISMISSED AT THE THRESHOLD. THE LD.COUNSEL FOR THE ASSESSEE FILED A CALCULATION SHOWING LOW TAX EFFECT. IT READS AS UNDER: 1. DISALLOWANCE MADE U/S14A R.W.S. 8D WHILE CALCULATING THE BOOK PROFIT U/S.115JB OF THE ACT RS.53,34,241/- TAX U/S.115JB @ 15% [A] RS.8,00,136/- 2. ADDITION OF UNUTILIZED CENVAT CREDIT U/S.145A OF THE ACT 4,201/- TAX ON DISPUTED ADDITION @30% [B] RS.1,260/- TOTAL TAX ON DISPUTED ADDITIONS (A+B) INCLUDING CESS @3% RS.8,25,438/- WHEN THE BENCH POINTED OUT TO THE LD.DR ABOUT MAINT AINABILITY REVENUES APPEAL BEFORE THE TRIBUNAL IN VIEW OF RECENT CBDT C IRCULAR RESTRICTING FILING OF APPEAL BEFORE THE TRIBUNAL WHERE TAX EFFECT IS B ELOW RS.10 LAKHS, THE LD.DR WAS UNABLE TO DISPUTE THE SAME, BUT LEFT TO THE TRI BUNAL TO DECIDE THE APPEAL IN ACCORDANCE WITH LAW. 4. WE HAVE HEARD LD.DR AND GONE THROUGH THE IMPUGNE D ORDERS. WE FIND THAT APPEAL OF THE REVENUE, WHICH IS FILED ON 23.5. 2015 IS HIT BY RECENT CBDT INSTRUCTION NO.21 OF 2015 DATED 10.12.2015 WHEREBY THE BOARD HAS PROHIBITED ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPE AL BEFORE 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, TAX EFFECT ON THE ITA NO.1530/AHD/2015 WITH CO 3 ADDITIONS DELETED BY THE LD.CIT(A) AND CONTESTED BY THE REVENUE, WOULD BE LESS THAN RS.10 LAKHS. THEREFORE, THE PRESENT APPE AL DESERVES TO BE DISMISSED AS BEING FILED IN VIOLATION OF THE ABOVE CBDT INSTR UCTION. IT IS THUS DISMISSED. 5. IT IS FURTHER OBSERVED THAT ON RE-VERIFICATION A T THE END OF THE AO, IT CAME TO THE NOTICE THAT TAX EFFECT IS MORE OR IT FA LLS WITHIN THE AMBIT OF EXCEPTION PROVIDED IN THE INSTRUCTION, THEN THE DEP ARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SU CH APPLICATION SHOULD BE FILED WITHIN LIMITATION PRESCRIBED UNDER THE LAW. 6. SO FAR AS CO OF THE ASSESSEE IS CONCERNED, THE S AME IS NOT PRESSED BY THE ASSESSEE FOR ADJUDICATION, ACCORDINGLY, THE SAM E IS DISMISSED FOR WANT OF PROSECUTION. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D DUE TO LOW TAX EFFECT, AND CROSS OBJECTION OF THE ASSESSEE IS DISMISSED FO R WANT OF PROSECUTION. ORDER PRONOUNCED IN THE COURT ON 1 ST FEBRUARY, 2018 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER