The ITO, Ward-5(1), Surat V. Shri Bhupendra A.Doriwala, Surat

ITA 2166/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1703 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R B SHAH
• Keywords: Gross profit estimation; Retrospective amendment; Tax effect
• Section: 68

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.2166/AHD/2012 WITH CO NO.230/AHD/2012 / ASSTT. YEAR: 2008-2009 ITO, WARD - 5(1) SURAT. VS BHUPENDRA A. DORIWALA PROP: OF BHUPENDRA TEXTILE 8/2438, ARA STREET GOPIPURA, SURAT 395 002. PAN : ABKPD 0893 P ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI JAMES KURIAN, SR.DR ASSESSEE BY : SHRI R.B. SHAH, AR / DATE OF HEARING : 04/05/2016 / DATE OF PRONOUNCEMENT: 05/05/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL AGAINST THE ORDER OF THE L D.CIT(A)-I, SURAT DATED 20.7.2012 PASSED FOR THE ASSTT.YEAR 200 8-09. ON ISSUANCE OF NOTICE ON THE APPEAL OF THE REVENUE, THE ASSESSEE FILED CROSS-OBJECTION BEARING NO.230/AHD/2012. ITA NO.2166/AHD/2012 WITH CO 2 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT (A) HAS ERRED IN RESTRICTING THE ADDITION TO RS.65,536/- FROM RS.3,0 6,600/- MADE ON ACCOUNT OF LOW GP, AND DELETING THE ADDITION OF RS. 5,76,711/- MADE ON ACCOUNT OF DISALLOWANCE OF NON-TDS ON JOB CHARGES. THE REVENUE IS ALSO AGGRIEVED WITH THE ACTION OF THE LD.CIT(A) IN DELETING THE ADDITION OF RS.10,12,690/- MADE ON ACCOUNT OF CASH CREDIT UN DER SECTION 68 OF THE INCOME TAX ACT. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS RAISED PRELIMINARY OBJECTION AS TO APPLICABILITY AND MAINTAINABILITY O F THE APPEAL FILED BY THE REVENUE IN VIEW OF RECENT CBDT INSTRUCTION NO.2 1/2015 RESTRICTING THE FILLING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.10 LAKHS. THE LD.DR DID NOT DISPUTE THE SAME AN D SUBMITTED THAT THE ISSUE MAY BE LEFT TO THE AO TO DECIDE WHETHER THE T AX EFFECT IS BELOW RS.10 LAKHS AS STIPULATED IN THE INSTRUCTIONS OF TH E CBDT. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 1.10.2012. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEAR ING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO 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.10 L AKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT , MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEAL S ALSO. IN THE PRESENT CASE, TOTAL ADDITIONS DELETED BY THE LD.CIT(A) IS R S. 13,48,337/- WHICH WAS CHALLENGED BY THE REVENUE IN THE PRESENT APPEAL . IN ACCORDANCE WITH THE ABOVE CBDT CIRCULAR THE TAX EFFECT ON THE IMPUGNED ADDITIONS ITA NO.2166/AHD/2012 WITH CO 3 WOULD BE LESS THAN RS.10 LAKHS, AND THEREFORE, THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED BEING TREATED TO B E FILED IN VIOLATION OF CBDT INSTRUCTIONS. FURTHER, THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FUR THER OBSERVED THAT SINCE, WHILE HEARING THE APPEALS, SUCH FACTORS COULD NOT B E CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END O F THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITH IN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WI LL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SU CH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEALS OF THE REVENUE ARE DISMISSED. 5. THE LD.COUNSEL FOR THE ASSESSEE DOES NOT PRESS C ROSS-OBJECTION FOR ADJUDICATION, HENCE, THE SAME IS ALSO DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 5 TH MAY, 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 05/05/2016