The ITO, Ward-2(2), Bhavnagar V. Shri Girishchandra Nandlal Davda, Bhavnagar

ITA 1720/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9675 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 28-01-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 29-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PD R
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE S/SHRI KUL BHARAT,JM AND MANISH BORAD, AM ./ITA.NO.1720/AHD/2011 ALONG WITH CO 185/AHD/2011 ( / ASSTT YEAR : 2003-04) INCOME-TAX OFFICER, WARD-2(2), BHAVNAGAR. VS. SHRI GIRISHCHANDRA NANDLAL DAVDA, PROP. OF JALARAM TRANSPORT CO., SUTWARWAD, STATION ROAD, BHAVNAGAR. PAN : ABYPD 2188R (APPELLANT) (RESPONDENT) / APPELLANT BY: MRS. SONIA KUMAR, SR.DR / RESPONDENT BY: MS. RIDDHI SHAH, AR / DATE OF HEARING 29/01/2016 /DATE OF PRONOUNCEMENT 02-02-2016 / 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)-XX, AHMEDABAD DATED 28.4.2011 PASSED FOR THE ASSTT.YEAR 2003-04. 2. THE GRIEVANCE OF THE REVENUE IS AS PER FOLLOWING GROUNDS OF APPEAL :- 1. THE CIT(A)-XX, AHMEDABAD HAS ERRED IN LAW AND IN FACTS IN DELETING THE ADDITION OF RS.10,97,183/- MADE ON ACCOUNT OF DIFFERENCE IN GROSS RECEIPTS. ITA.NO.1720 & CO.185/AHD/2011 - 2 2. IN DOING SO, THE CIT(A)-XX, AHMEDABAD HAS ERRED IN LAW AND IN FACTS IN RELYING ONLY ON THE SUBMISSION OF T HE ASSESSEE AND AT THE SAME TIME IGNORING THE FINDING OF THE AS SESSING OFFICER. EVEN THOUGH THE ASSESSEE HAD FURNISHED THE RECONCILIATION STATEMENT DURING THE APPELLATE PROCE EDING BEFORE THE CIT(A) BUT THE CIT(A) DID NOT CALL FOR RECONCILIATION REPORT FROM THE ASSESSING OFFICER DU RING THE APPELLATE PROCEEDINGS. 3. THE CIT(A) HAS THUS FAILED TO TAKE INTO CONSIDER ATION THE SURROUNDINGS FACTS AND CIRCUMSTANCES OF THE CASE AN D HAS SIMPLY GONE BY MERE TECHNICALITIES OF THE CASE. 4. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE CI T(A)-XX, AHMEDABAD BE SET ASIDE AND THAT OF THE ASSESSING OF FICER BE RESTORED TO THE ABOVE EXTENT. 3. THIS APPEAL WAS PRESENTED ON 29.06.2011. ON 10. 12.2015 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 TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN ITA.NO.1720 & CO.185/AHD/2011 - 3 FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, TH E APPEAL OF THE REVENUE IS DISMISSED. 4. THE CROSS OBJECTION OF THE ASSESSEE IS IN SUPPOR T OF THE ORDER OF LD. CIT(A). SINCE WE HAVE DISMISSED THE APPEAL OF REVEN UE THE C.O. OF ASSESSEE HAS BECOME INFRACTUOUS. SO THE C.O. IS DIS MISSED AS INFRACTUOUS. 5. IN THE RESULT, APPEAL OF REVENUE AND THE C.O. OF THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 2 ND FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 02/02/2016 ! '!/ 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.1720 & CO.185/AHD/2011 - 4 1. DATE OF DICTATION .. : 1/2/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 1/2/2016 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 2/2/16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATUR E ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER