The DCIT, Circle-1(2), Baroda V. Shri Dhaval Dilipbhai Patel, Baroda

ITA 192/AHD/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9331 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 23-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJDIP SINGH
• Keywords: Cost of acquisition; Tax effect; Capital Gains
• Section: 143(3); 54F; 139(1)

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMB ER & SHRI MANISH BORAD, ACCOUNTANT MEMBER I.T.A. NO. 192/AHD/2017 ( / ASSESSMENT YEAR: 2012-13) DCIT CIRCLE-1(2), 2 ND FLOOR, AAYAKAR BHAVAN RACE COURSE CIRCLE, BARODA / VS. SHRI DHAVAL DILIPBHAI PATEL 9 TH FLOOR, ARUNDEEP COMPLEX, RACE COURSE CIRCLE (S), BARODA- 390007 ./ ./ PAN/GIR NO. : AEK PP4 961 R ( APPELLANT /RESPONDENT ) .. ( RESPONDENT /CROSS OBJECTOR ) / APPELLANT BY : SHRI RAJDIP SINGH, SR. DR. / RESPONDENT BY : SHRI SULABH PADSHAH, AR / DATE OF HEARING 01/10/2019 !'# / DATE OF PRONOUNCEMENT 01/10/2019 $%/ O R D E R PER MANISH BORAD AM:- THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF IN COME TAX (APPEALS)-5, VADODARA (CIT(A) IN SHORT), DATED 05 .10.2016 ARISING IN THE ASSESSMENT ORDER DATED 24.03.2015 PA SSED BY THE ASSESSING OFFICER (AO) UNDER S. 143(3) OF THE INCOM E TAX ACT, 1961 (THE ACT) IN THE ASSESSMENT YEAR 2012-13. ITA NO.192/AHD/2017 [DCIT VS. SHRI DHAVAL DILIPBHAI PATEL] A.Y. 2012-13 - 2 - 2. THE GROUND OF APPEAL RAISED BY THE REVENUE READ S AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN LAW AND FACT IN DELETING THE DISALL OWANCE OF INTEREST EXPENSES OF RS. 59,41,511/- U/S. 57(II) OF THE ACT, WITHOUT APPRECIATING THE FACT THE AO IS RIGHTLY JUSTIFIED IN MAKING SUCH DISALLOWANCES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E IN LAW, THE LD. CIT(A) ERRED IN LAW AND FACT IN DELETING DISALLOWAN CE OF CLAIM OF EXEMPTION OF RS. 80,59,155/- U/S. 54F OF THE ACT, W ITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD FAILED TO COMPLY WIT H THE PROVISIONS OF SECTION 54F(4) OF THE ACT, IN THAT, HE HAD FAILED T O DEPOSIT THE UNUTILIZED AMOUNT IN CAPITAL GAINS ACCOUNT, BEFORE FURNISHING THE ROI U/S. 139(1) OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN LAW AND FACT IN DELETING THE DISALL OWANCE OF EXPENSES OF RS. 9,78,156/-, WITHOUT APPRECIATING THE FACT TH AT THIS PAYMENT HAVE NO NEXUS WITH COST OF ACQUISITION AND THE SAME HAS NOT BEEN INCURRED FOR ANY ADDITION OR ALTERATION TO THE ORIGINAL ASSE T. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR A LTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 3. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD.AR FOR THE ASSESSEE THAT APPEAL FILED BY THE REVENUE IS HI T BY RECENTLY ISSUED CBDT CIRCULAR NO.17 OF 2019 DATED 08/08/2019 REVISING THE PREVIOUS THRESHOLDS PERTAINING TO TAX EFFECTS. IT IS INTER ALIA NOTICED THAT THE CBDT VIDE INSTRUCTION NO. F. NO. 2 79/MISC/M- 93/2018-ITJ DT. 20/08/2019 HAS OBSERVED THAT CIRCUL AR NO.17/2019 DATED 08/08/2019 RELATING TO ENHANCEMENT OF MONETAR Y LIMITS IS ALSO APPLICABLE TO ALL PENDING APPEALS. AS PER AFO RESAID CIRCULAR READ WITH INSTRUCTIONS, ALL PENDING APPEALS FILED B Y REVENUE ARE LIABLE TO BE DISMISSED AS A MEASURE FOR REDUCING LI TIGATION WHERE THE TAX EFFECT DOES NOT EXCEED THE PRESCRIBED MONET ARY LIMIT WHICH IS NOW REVISED AT RS.50 LAKHS. IN THE INSTANT CASE , THE TAX EFFECT ON THE DISPUTED ISSUES RAISED BY THE REVENUE IS STA TED TO BE NOT EXCEEDING RS.50 LAKHS AND THEREFORE APPEAL OF THE R EVENUE IS REQUIRED TO BE DISMISSED IN LIMINE . ITA NO.192/AHD/2017 [DCIT VS. SHRI DHAVAL DILIPBHAI PATEL] A.Y. 2012-13 - 3 - 4. THE LEARNED DR FOR THE REVENUE FAIRLY ADMITTED T HE APPLICABILITY OF THE CBDT CIRCULAR NO. 17 OF 2019. ACCORDINGLY, APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINA BLE. HOWEVER, IT WILL BE OPEN TO THE REVENUE TO SEEK RESTORATION OF ITS APPEAL ON SHOWING INAPPLICABILITY OF THE AFORESAID CBDT CIRCU LAR IN ANY MANNER. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. SD/- SD/- (KUL BHARAT) (MANIS H BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 01/10/2019 TANMAY, SR. PS TRUE COPY !' #' / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. $ / ASSESSEE 3. ) *+ , / CONCERNED CIT 4. ,- / CIT (A) 5. 012 33*+, *+#, 56$)$ / DR, ITAT, AHMEDABAD 6. 289 : / GUARD FILE. BY ORDER / $% , ;/ 5 *+#, 56$)$ < 1.DATE OF DICTATION ON 01.10.2019 AS PER LOW TA X EFFECT FORMAT 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 01.10.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 01.10.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 01.10.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 01 .10.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 01.10.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER THIS ORDER PRONOUNCED IN OPEN COURT ON 01/10/2019