The ITO, Ward-10(3), Ahmedabad V. Shri Nalin Rajnikant Jariwala,

ITA 2040/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1307 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3)

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI S.S.GODARA, JM, AND SHRI MANISH BORAD, AM ./ITA.NO.2040/AHD/2013 ALONG WITH C.O. NO.31/AHD/2014 ( / ASSTT YEAR : 2009-10) ITO,WARD -10(3) AHMEDABAD. VS. SHRI NALIN RAJNIKANT JARIWALA, 702, SHIKHAR COMPLEX, NAVRANGPURA, AHMEDABAD. PAN AARPJ 0413H (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI KEYUR PATEL, SR.DR / RESPONDENT BY: SHRI KARAN SHAH, AR / DATE OF HEARING 28/06/2016 /DATE OF PRONOUNCEMENT 28/06/2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THIS APPEAL OF REVENUE & THE CROSS OBJECTION OF A SSESSEE ARE DIRECTED AGAINST THE ORDER OF LD.CIT(A)-XVI, AHMEDA BAD DATED 22 ND MAY 2013 PASSED AGAINST THE ORDER U/S 143(3) OF THE IT ACT, 1961(IN SHORT THE ACT) DT.19.12.2011 FRAMED BY ITO, WD-10(3), AHMEDA BAD. 2. GRIEVANCES OF THE REVENUE, IN THIS APPEAL ARE AS UNDER :- (1) THE LD. CIT(A) HAS ERRED IN FACTS AND DELETED THE ADDITION OF RS.17,84,397/- MADE BY THE ASSESSING OFFICER MADE ON ACCOUN T OF LONG TERM CAPITAL GAIN. ITA.NO.2040/AHD/2013 & CO NO.31/AHD/2014 - 2 (2) THE LD. CIT(A) FAILED TO CONSIDER THE FACT THAT TH E ASSESSEE HAD FAILED TO PROVE THE INCREASE IN THE RATE OF LAND BY RS.800/- PER SQ. MTRS PARTICULARLY WHEN THE APPROVED VALUER HIMSELF HAS CERTIFIED THAT TH E AVERAGE LAND RATE PREVAILING IN THAT AREA IS ABOUT RS. 200/- PER SQ. MT RS. (3) THE LD. CIT(A) ERRED IN HOLDING THAT THE COST INFLATION INDEX FOR THE YEAR 1981-82 BE ADOPTED AS AGAINST THE COST INFLATION INDEX OF F.Y. 2004-05 WHEN THE ASSESSEE GOT THE PROPERTY BY IGNORING THE FACTS THAT IF THE COST INFLATION INDEX OF 1981 IS CONSIDERED, THEN THE FORMUL A GIVEN IN SEC. 48(III) BECOMES REDUNDANT AS POINTED OUT BY THE AO IN THE ASSESSM ENT ORDER. 3. THIS APPEAL WAS PRESENTED ON 01-08-2013. 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 APPEAL ALSO. THE TAX EFF ECT ON DELETION OF THE TOTAL ADDITION IN THIS APPEAL 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 TH E AMBIT 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 THEY FALL WITHIN THE AMBIT OF EXC EPTIONS 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 LIMITATION PROVIDED IN LAW. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. ITA.NO.2040/AHD/2013 & CO NO.31/AHD/2014 - 3 4. THE CROSS OBJECTION IS IN SUPPORT OF LD. CIT(A) S ORDER. SINCE THE APPEAL OF REVENUE IS DISMISSED, THE CROSS OBJECTION HAS BECOME INFRUCTUOUS AND HENCE THE C.O. IS ALSO DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE AND THE CRO SS OBJECTION OF THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 28 TH JUNE, 2016 AT AHMEDABAD. SD/- (S. S. GODARA) JUDICIAL MEMBER SD/- (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 28/06/2016 ! '!/ 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.2040/AHD/2013 & CO NO.31/AHD/2014 - 4 1. DATE OF DICTATION .. : 28/06/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 28/06/2016 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 F OR 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 28/6 /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