The ITO, Ward-6(1)(4), Ahmedabad V. Shri Jagdish S. Sheth, Ahmedabad

ITA 208/AHD/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2862 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 25-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Keywords: Retrospective amendment; Tax effect
• Section: 69

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMAJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO. 208/AHD/2017 / ASSESSMENT YEAR: 2007-08 ITO, WARD-6(1)(4) AHMEDABAD. VS SHRI JAGDISH S. SHETH B-1, SWAPNA PALACE FLATS NR. SAIBABA TEMPLE, RAMBAUGH MANINAGAR, AHMEDABAD. / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI G.C. DAXINI, SR.DR ASSESSEE BY : SHRI PARIN SHAH, AR / DATE OF HEARING : 29/10/2018 /DATE OF PRONOUNCEMENT : 01/11/2018 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : THIS IS REVENUES APPEAL AGAINST ORDER OF THE LD.CIT(A)-6, AHMEDABAD DATED 2 8.11.2016 PASSED FOR THE ASSESSMENT YEAR 2007-08. 2. IN THIS APPEAL, REVENUE HAS CHALLENGED CIT(A)S ORDER IN DELETING ADDITION OFRS.46,93,850/- WHICH WAS MADE UNDER SECT ION 69 OF THE INCOME TAX ACT, 1961 BY THE LD.AO 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE F OR THE ASSESSEE POINTED OUT THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINA BLE IN VIEW OF RECENT ITA NO.208/AHD/2017 - 2 - CBDT CIRCULAR NO.3/2018 DATED 11.7.2018 RESTRICTING THE FILLING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKH. THE TAX EFFECT ON THE DISPUTED ADDITION IS BELOW RS.20 LAKH S, THEREFORE, APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED. LD.DR DID N OT DISPUTE THE SUBMISSIONS OF THE ASSESSEE AND LEFT THE ISSUE TO T HE TRIBUNAL TO ADJUDICATE THE SAME IN ACCORDANCE WITH LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 25.1.2017. THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2 018 UNDER FILE NO.F.NO.279/MISC.142/2007-ITJ(PT) PROHIBITING ITS S UBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST T HE 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 APPLI CABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRU CTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, QUANTUM OF ADDITION INVOLVED IS RS.67,46,000/- MADE ON PROTECTIVE BASIS, AND THEREF ORE, TAX EFFECT WOULD BE LESS THAN RS.20 LAKHS. THE TAX EFFECT AS PER C BDT CIRCULAR IS TAX ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FILED, IS LESS TH AN RS.20 LAKHS. FURTHER, THE CASE OF THE REVENUE ALSO DOES NOT FALL WITHIN T HE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEPING IN VIEW TH E ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX AC T, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS 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 ITA NO.208/AHD/2017 - 3 - FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN TH E CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF TH E REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 1 ST NOVEMBER, 2018. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER