The ITO, Ward-1(2)(4), Vadodara V. Shri Shashi Jivanlal Patel, Vadodara

ITA 1955/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9895 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 28-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Retrospective amendment; Speculation loss; 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.1954, 1955 AND 1956/AHD/2016 / ASSTT. YEAR: 2011-12, 2012-13 AND 2013-14 ITO, WARD - 1(2)(4) VADODARA. VS. SHRI SHASHI JIVANLAL PATEL C-240, NILKANTH GREENS NR.DELHI PUBLIC SCHOOL KALALI, VADODARA. PAN : ARRPP 9539 M ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI LALIT P. JAIN, SR.DR ASSESSEE BY : SHRI KARAN SHAH, AR / DATE OF HEARING : 11/12/2018 / DATE OF PRONOUNCEMENT: 11 /12/2018 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT THREE APPEALS ARE FILED BY THE REVENUE AGAI NST COMMON ORDER OF THE LD.CIT(A)-4, VADODARA DATED 29.3.2016 FOR THE A SSTT.YEARS 2011-12 TO 2013-14. ALL THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER. 2. IN THESE APPEALS, COMMON GRIEVANCE OF THE REVENU E IS THAT THE LD.CIT(A) HAS ERRED IN TREATING CASH AND CHEQUES DE POSITS IN VARIOUS BANK AND ALSO SET OFF OF NON-SPECULATION LOSS AGAINST UNEXPL AINED DEPOSITS, AS SET OUT IN RESPECTIVE GROUNDS OF APPEAL. 3. AT THE VERY OUTSET, THE LD.COUNSEL FOR THE ASSES SEE OBJECTED TO ADMISSIBILITY OF APPEALS FILED BY THE REVENUE BEFOR E THE TRIBUNAL IN VIEW OF ITA NO.1954/AHD/2016 AND 2 OTHERS 2 RECENT CBDT CIRCULAR RESTRICTING FILING OF APPEAL B Y THE REVENUE BEFORE THE TRIBUNAL WHERE TAX EFFECT IS BELOW RS.20 LAKHS. HE POINTED OUT THAT TAX EFFECT IN THE PRESENT CASE IS BELOW MONETARY LIMIT PRESCRI BED BY THE CBDT, AND THEREFORE, APPEAL OF THE REVENUE IS LIABLE TO DISMI SSED AT THE THRESHOLD. TO DEMONSTRATE THE TAX EFFECT IS BELOW RS.20 LAKHS IN EACH CASE, THE ASSESSEE HAS FILED A CALCULATION SHEET, WHICH IS REPRODUCED BELO W: PARTICULARS ASSESSMENT YEARS 2011-12 2012-13 2013-14 RETURNED INCOME (A) 520 1,090 - TAX INCLUDING SC & EC ON RETURNED INCOME (B) - - - ADDITIONS MADE IN ASSESSMENT: UNEXPLAINED BANK DEPOSITS 47,42,664 42,46,800 62,76,690 TOTAL ADDITION MADE (C) 47,42,664 42,46,800 62,76,690 ASSESSED INCOME (D)=(A)+(C) 47,43,184 42,47,890 62,76,690 TAX INCLUDING SC & EC ON ASSESSED INCOME (E) 13,15,263 11,60,158 17,64,397 TAX EFFECT (F)=(E)-(B) 13,15,263 11,60,158 17,64,397 4. WHEN THE BENCH POINTED OUT TO THE LD.DR ABOUT MA INTAINABILITY REVENUES APPEAL BEFORE THE TRIBUNAL IN VIEW OF REC ENT CBDT CIRCULAR AND CALCULATION SHEET FILED BY THE LD.COUNSEL FOR THE A SSESSEE, THE LD.DR WAS UNABLE TO DISPUTE THE SAME, BUT LEFT TO THE TRIBUNA L TO DECIDE THE APPEAL IN ACCORDANCE WITH LAW. 5. WE HAVE HEARD LD.DR AND GONE THROUGH THE IMPUGNE D ORDERS. WE FIND THAT APPEALS OF THE REVENUE, WHICH ARE FILED ON 28. 7.2017 ARE HIT BY RECENT CBDT INSTRUCTION NO.3 OF 2018 DATED 11.08.2018 WHER EBY THE BOARD HAS ITA NO.1954/AHD/2016 AND 2 OTHERS 3 PROHIBITED ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.20 LAKHS . THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEA NING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO . IN THE PRESENT CASE, THE TAX EFFECT ON THE QUANTUM OF DISPUTED BY THE RE VENUE DOES NOT EXCEED RS.20 LAKHS. THEREFORE, THE PRESENT APPEALS OF THE REVENUE ARE HIT BY THE CBDT CIRCULAR AND HENCE NOT MAINTAINABLE . FURTHER, LD.DR HAS NOT POINTED OUT WHETHER THE CASE OF THE REVENUE FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR OR NOT. THU S, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEALS OF THE REVENUE DESERVE TO BE DISMISSED. THEY ARE ACCORDINGLY DISMISSED. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIFICA TION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT I S MORE OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE T RIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHI N THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE A PPEALS OF THE REVENUE ARE DISMISSED DUE TO LOW TAX EFFECT. 6. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED DUE TO LOW TAX EFFECT ORDER PRONOUNCED IN THE COURT ON 11 TH DECEMBER, 2018 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 11/12/2018