The ACIT, Circle-6, Ahmedabad V. Shri Babubhai Jesangbhai Desai, Ahmedabad

ITA 1907/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9597 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 02-02-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 30-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Retrospective amendment; Tax effect
• Section: 69; 148

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE S/SHRI RAJPAL YADAV,JM AND MANISH BORAD, AM ./ITA.NO.1907/AHD/2012 ( / ASSTT YEAR : 2004-05) ACIT, CIRCLE-6, AHMEDABAD. VS. BABUBHAI JESANGBHAI DESAI, A/25, BHAGWATINAGAR SOCIETY, OPP. GULAB TOWER, SOLA ROAD, BHUYANGDEV, AHMEDABAD PAN :ABOPD 5495K (APPELLANT) (RESPONDENT) / APPELLANT BY: SRI V. K. SINGH, SR. DR / RESPONDENT BY: - / DATE OF HEARING 2/02/2016 /DATE OF PRONOUNCEMENT 03-02-2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD.CIT(A) - XI, AHMEDABAD DATED 22.06.2012 PASSED FOR THE ASSTT .YEAR 2004-05. 2. THE GRIEVANCE OF THE REVENUE IS AS PER FOLLOWING GROUNDS OF APPEAL :- I) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN QUASHING THE RE- ASSESSMENT ORDER ON THE GROUND THAT THE NOTICE U/S 148 ISSUED AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT A SSESSMENT YEAR, IS INVALID. ITA.NO._1907/AHD/2012 - 2 II) THE LD. CIT(A) HAS IGNORED THE FACT THAT THE AS SESSMENT WAS RE- OPENED ON THE BASIS OF SPECIFIC INFORMATION THAT TH E ASSESSEE INDULGED IN BOGUS TRANSACTIONS THROUGH ACCOMMODATIO N ENTRIES, AS ADMITTED BY THE RELATED PARTIES. III) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.18,71,894/- MADE BY THE ASSESSING OF FICER U/S 69 OF THE ACT. IV) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ACCEPTING THE CONTENTION OF THE ASSESSEE THAT THE TRANSACTIONS WE RE GENUINE JUST BECAUSE THE SALES OF SHARES ARE RECORDED IN BOOKS O F ACCOUNT. V) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. VI) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . 3. THIS APPEAL WAS PRESENTED ON 30/08/2012. 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 E FFECT 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 AM BIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERV ED 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 ITA.NO._1907/AHD/2012 - 3 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 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 DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 3RD FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 3/02/2016 ! '!/ 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._1907/AHD/2012 - 4 1. DATE OF DICTATION .. : 3/2/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 3/2/2016 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 D ICTATING MEMBER FOR 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 3/2/216 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER