The ITO, Ward-2(4), Bhavnagar V. Shri Nirad Bachubhai Patel, Bhavnagar

ITA 2198/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9662 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 29-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEP SINGH
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV , JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER ./ ITA NO . 2198 / AHD/ 20 1 3 [ [ / ASS TT. YEAR : 20 1 0 - 20 1 1 ] ITO, WARD - 2(4) BHAVNAGAR. VS SHRI NIRAD B. PATEL PROP: CHANDA PHARMA 14/15/16, AKSHARDEEP COMPLEX KUMBHARWADA MAHUVA 364 290. PAN : AHPPP 9074 K ( APPLICANT ) (RESPONDENT) REVENUE BY : SHRI RAJEEP SINGH, SR.DR ASSESSEE BY : SHRI TUSHAR HEMAN I / DATE OF HEARING : 29 / 01 /201 6 / DATE OF PRONOUNCEMENT: 08 / 02 /201 6 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDER OF THE LD.CIT(A) - X X DATED 14.6.2013 PASSED FOR THE ASSTT.YEAR 20 1 0 - 1 1 . 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.19,61,831/ - BEING 80% OF RS.24,52,164/ - BEING INCENTIVE PAID TO THE RETAILERS IN THE ABSENCE OF ANY PROOF OF PAYMENT. 3. THE LD.COUN S EL FOR THE ASSESSEE, AT THE OUTSET CONTENDED THAT THE APPEAL FILED BY THE REVENUE IS NOT ADMISSIBLE, AS THE SAME IS FILED BY THE REVENUE IN VIOLATION OF CBDT CIRCULAR NO.21/2015 DATED 10. 12.2015. BY VIRTUE OF THIS INSTRUCTION, THE BOARD HAS RESTRAINED THE DEPARTMENT NOT TO FILE APPEAL BEFORE ITA NO. 2198 /AHD/201 3 2 THE TRIBUNAL WHERE THE TAX EFFECT IS BELOW RS.10 LAKHS . HE SUBMITTED THAT THE TAX EFFECT ON THE IMPUGNED ADDITION IS LESS THAN RS.10,00,000/ - AND T HEREFORE, APPEAL OF THE ASSESSEE LIABLE TO BE DISMISSED IN LIMINE . THE LD.DR COULD NOT CONTROVERT TO THIS SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE. 4. WE FIND THAT THE ASSESSEE HAS FILED ITS APPEAL ON 2 9 . 8 .2013. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING 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 LAKHS. THE INSTRU CTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE ASSESSED INCOME IS RS.27,10,624/ - AND ADDITION DELETED BY THE LD.CIT(A) IS OF RS.19,61,831/ - , AND THEREFORE, TAX EFFECT WOULD BE LESS THAN RS.10 LAKHS. THUS, THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. IT IS FUR T HER OBSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS COULD NOT B E CROSS - VERIFIED, T HER E FORE, IN CASE, ON RE - VERIFICATION AT THE E ND OF THE AO, IT CAME TO THE N OTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 5 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 T H FEBRUARY , 201 6 AT AHMEDABAD. S D / - S D / - ( ANIL CHATURVEDI) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 8 / 02 /201 6 T R U E C O P Y ITA NO. 2198 /AHD/201 3 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , / DR, ITAT, 6. [ / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD