The ITO, Ward-1(1), Surat V. M/s. Balaji Processors Pvt.Ltd., Surat

ITA 2261/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1220 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 23-06-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 07-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Retrospective amendment; Reasonable cause; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2261/AHD/2011 WITH CO NO.57/AHD/2012 / ASSTT. YEAR: 2003-2004 ITO, WARD - 1(1) SURAT. VS M/S.BALAJI PROCESSORS P.LTD. PLOT NO.35-36, BAMROLI ROAD GIDC, PANDESARA SURAT 394 221. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI DINESH SINGH, SR.DR ASSESSEE BY : NONE / DATE OF HEARING : 23/06/2016 / DATE OF PRONOUNCEMENT: 04/07/2016 $%/ O R D E R THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINS T THE ORDER OF THE LD.CIT(A)-I, SURAT DATED 10.6.2011 PASSED FOR THE A SSTT.YEAR 2003-04. ON RECEIPT OF NOTICE OF THE REVENUES APPEAL, THE ASSE SSEE HAS FILED CROSS OBJECTION BEARING NO.57/AHD/2012. 2. SOLITARY GRIEVANCE OF THE REVENUE IS THAT THE LD .CIT(A) HAS ERRED IN RESTRICTING THE ADDITION TO RS.2,06,936/- FROM RS.3 3,59,352/- ON ACCOUNT OF SUPPRESSION OF PROCESSING RECEIPT. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREF ORE, WE PROCEED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD.DR AND C ONSIDERING THE MATERIAL AVAILABLE ON RECORD. ITA NO.2261/AHD/2011 WITH CO 2 4. BEFORE GOING TO MERIT OF THE CASE, A QUERY HAS B EEN RAISED BY THE BENCH AS TO MAINTAINABILITY OF THE APPEAL OF THE REVENUE BEFORE THE TRIBUNAL IN VIEW OF CBDT CIRCULAR NO.21/2015 DATED 10.12.2015, WHERE BY THE BOARD HAS RESTRAINED THE DEPARTMENT NOT TO FILE APPEAL BEFORE THE TRIBUNAL WHERE THE TAX EFFECT IS BELOW RS.10 LAKHS. TO THIS, THE LD.DR WA S UNABLE TO CONTROVERT TO THE SAME. 5. I FIND THAT THE REVENUE HAS FILED THIS APPEAL ON 7.9.2011. 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 EFFEC T BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRE SENT CASE, THE ADDITION CONTESTED BY THE REVENUE IS RS.31,52,416/- (RS.33,5 9,352/- MINUS RS.2,06,936), AND THE TAX EFFECT ON THIS ALLEGED AD DITION WOULD BE LESS THAN RS.10 LAKHS. THEREFORE, THE PRESENT APPEAL DESERVE S TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIO NS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS COULD NOT BE 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 WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIB ERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN LIMITATION PRESCRIBED UNDER THE LAW. IN VIEW OF TH E ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 6. AS FAR AS CO IS CONCERNED, I FIND THAT THE LD.AO HAS MADE AN ADDITION OF RS.33,59,352/- ON ACCOUNT OF SUPPRESSION OF PRO CESSING CHARGES. THIS WAS ITA NO.2261/AHD/2011 WITH CO 3 THE GROSS AMOUNT. THE LD.CIT(A) HAS OBSERVED THAT THE ASSESSEE MUST HAVE INCURRED EXPENDITURE FOR EARNING THE GROSS PROCESSI NG CHARGES. THE EXCISE DEPARTMENT ITSELF HAS DEMAND AN DUTY OF RS.18,59,93 1/-. CONSIDERING ALL THESE ASPECTS, THE LD.CIT(A) HAS ESTIMATED GP EARNE D BY THE ASSESSEE IN THIS SUPPRESSED PROCESSING CHARGES AT THE RATE OF 6.16%. ACCORDINGLY, THE LD.CIT(A) HAS CONFIRMED THE ADDITION OF RS.2,06,936 /-. THIS AMOUNT HAS BEEN IMPUGNED BY THE ASSESSEE IN THE CO. REGISTRY HAS P OINTED OUT THAT THE CO IS TIME BARRED BY 21 DAYS. THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY. NO ONE HAS COME PRESENT ON B EHALF OF THE ASSESSEE. SECTION 253(4) OF THE ACT AUTHORIZES THE RESPONDENT TO FILE CO WITHIN 30 DAYS OF RECEIPT OF NOTICE. THE ASSESSEE FAILED TO FILE SUCH CO WITHIN TIME LIMIT, AND ALSO FAILED TO SHOW ANY REASONABLE CAUSE FOR DELAY IN FILING OF THE CO AFTER EXPIRY OF STIPULATED TIME LIMIT. THEREFORE, THE CO FILED BY THE ASSESSEE IS ALSO DISMISSED AS TIME BARRED. 7. IN THE RESULT, BOTH APPEAL OF THE REVENUE AND TH E CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 4 TH JULY, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 04/07/2016