The ITO, Ward-3(2)(7), Ahmedabad V. Shri Kakan Krishnan Prasad, Ahmedabad

ITA 1981/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2418 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 29-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: BIREN SHAH
• Keywords: Reopening of assessment; Audit objection; Tax effect
• Section: 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1981/AHD/2016 & CO NO.135/AHD/2016 ASSESSMENT YEAR : 2010-11 INCOME TAX OFFICER, WARD 3(2)(7), AHMEDABAD VS SHRI KAKAN KRISHNAN PRASAD, 5, CALICO NAGAR, B/H. WINDSOME MG HOTEL, NAROL-ISANPUR ROAD, NAROL, AHMEDABAD PAN : ACPPP 9394 M / (APPELLANT) / (RESPONDENT/ CROSS-OBJECTOR) REVENUE BY : SHRI S.K. DEV, SR DR ASSESSEE BY : SHRI BIREN SHAH / DATE OF HEARING : 04/09/2018 / DATE OF PRONOUNCEMENT: 04/09/2018 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER :- THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINS T THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-3, AHMEDAB AD DATED 18.05.2016 PASSED FOR ASSESSMENT YEAR 2010-11. ON RECEIPT OF NOTICE IN THE REVENUES APPEAL, THE ASSESSEE HAS FILED CROSS-OBJECTION BEAR ING NO. 135/AHD/2016. 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS IN ITS A PPEAL:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.57,08,031/- MADE ON ACCOUNT OF SHORT CREDIT OF F REIGHT INCOME IN THE BOOKS OF ACCOUNT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. ITA NO. 198/AHD/2016 & CO 135/AHD/2016 SHRI KAKAN KRISHANAN PRASAD VS. ITO AYS : 2010-11 2 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCO UNT OF LOW TAX EFFECT IN VIEW OF THE RECENT CBDT CIRCULAR NO.3 OF 2018 DATED 11.07.2018. THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT TH E TAX EFFECT IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF THE RECENT CBDT CIRCULAR NO . 3/2018 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 11TH JULY, 2 018, VIDE WHICH IT HAS BEEN DECIDED BY THE BOARD THAT NO DEPARTMENTAL APPEALS S HOULD BE FILED BEFORE THE TRIBUNAL IF THE TAX EFFECT BY VIRTUE OF THE COMMISS IONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS. 20 LACS. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (10) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, WHERE THE CONS TITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT/RULE IS UNDER CHALLENGE OR WHE RE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPT ED BY THE DEPARTMENT OR WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN A SSETS/BANK ACCOUNTS ETC. WE FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX EFFECT IS LESS THAN RS.20 LACS. THEREFORE, THE PR ESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMISSED. 5. HOWEVER, AT THIS STAGE, LEARNED DEPARTMENTAL REP RESENTATIVE IS UNABLE TO MAKE A CATEGORICAL STATEMENT OF FACTS. HENCE, ON RE-VERIFICATION AT THE END OF THE ASSESSING OFFICER, IF IT COMES OUT THAT THE TAX EFFECT BY VIRTUE OF RELIEF GIVEN BY THE LEARNED CIT(A) IS MORE OR REVENUES CASE FAL LS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE AFORESAID CIRCULAR, THEN THE REVENUE WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THI S ORDER. HOWEVER, SUCH ITA NO. 198/AHD/2016 & CO 135/AHD/2016 SHRI KAKAN KRISHANAN PRASAD VS. ITO AYS : 2010-11 3 APPLICATION SHOULD BE FILED WITHIN THE TIME LIMIT P RESCRIBED UNDER THE INCOME- TAX ACT. 6. AS FAR AS THE CROSS-OBJECTION OF THE ASSESSEE IS CONCERNED, THE ASSESSEE HAD CHALLENGED THE REOPENING OF ASSESSMENT BY ISSUA NCE OF NOTICE U/S 148 OF THE INCOME-TAX ACT. SINCE THE RELIEF HAS ALREADY B EEN GRANTED TO THE ASSESSEE BY THE LEARNED CIT(A) ON MERITS AND WE HAVE DISMISSED THE APPEAL OF THE REVENUE ON ACCOUNT OF LOW TAX EFFECT, THEREFORE, WE DO NOT DEEM IT NECESSARY TO ADJUDICATE THE CROSS-OBJECTION ON MERITS AT THIS ST AGE. IN CASE, ON REVENUES APPLICATION THE APPEAL IS REVIVED, THEN THE ASSESSE E WILL BE AT LIBERTY TO ASK FOR REVIVAL OF THIS CROSS-OBJECTION. WITH THE ABOVE OB SERVATIONS, THE APPEAL AND CROSS-OBJECTION ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE AND CRO SS-OBJECTION OF THE ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 4 TH SEPTEMBER, 2018 AT AHMEDABAD. SD/- SD/- ( WASEEM AHMED ) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED 04/09/2018 *BT / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '! / THE RESPONDENT. 3. & ( / CONCERNED CIT 4. ( ) ( / THE CIT(A)- 5. & , & , /DR,ITAT, AHMEDABAD, 6. 1 / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) & ITAT, AHMEDABAD