The ACIT, Circle-6, Surat V. Shri Kamlesh Hasmukhlal Soni, Tapi

ITA 2271/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5918 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 08-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAILASH RATNOO
• Keywords: Audit objection; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP AT SURAT BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO. 2271/AHD/2014 / ASSTT. YEAR: 2010-11 ACIT, CIRCLE-6, SURAT VS. SHRI KAMLESH HASKUKHLAL SONI, PORP. OF HASMUKHBHAI N. SONI, BUHARI, TALUKA VALOD, DIST. TAPI 394630 PAN : AFSPS 3147 R / (APPELLANT) / (RESPONDENT) REVENUE BY : MR. KAILASH RATNOO, SR. DR ASSESSEE BY : MR. RAJESH SHAH / DATE OF HEARING : 25/04/2017 / DATE OF PRONOUNCEMENT: 01/05/2017 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, SURAT DATED 29.05.2014 FOR AY 2010-11. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION ON ACCOUNT OF UN EXPLAINED CASH CREDIT U/S 68 OF THE ACT TO THE TUNE OF RS.24,14,000/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS NOT APPRECIATED THE FINDINGS OF THE AO IN RESPE CT OF THE CAPACITY OF THE LENDER FROM THE STATEMENT RECORDED ON OATH. ITA NO. 2271/AHD/2014 ACIT VS. SHRI KAMLESH H. SONI AY : 2010-2011 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS NOT APPRECIATED THE FACT THAT THE ASSESSEE COUL D NOT ESTABLISH THE CAPACITY OF THE CREDITORS WHO SHELTED OUT HUGE SUM AS UNSECURED LOAN TO THE ASSESSEE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A), SURAT OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSI NG OFFICER. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A), SURAT MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCO UNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12 .2015. HE HAS ALSO SUBMITTED THAT IN THE PRESENT CASE THE TAX EFFECT I S RS.7,55,184/- WHICH IS BELOW THE PRESCRIBED LIMIT OF RS.10 LACS AND HE HAS PLACED ON RECORD THE WORKING FOR THE SAME. THE LD. DEPARTMENTAL REPRESE NTATIVE FAIRLY ADMITTED THAT THE TAX EFFECT IS LESS THAN THE LIMIT PRESCRIB ED BY THE AFORESAID CBDT CIRCULAR. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/20 15 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WH ICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE CO MMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS. 10 LACS, THEN THAT O RDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREI N IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCLOSED F OREIGN ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE ITA NO. 2271/AHD/2014 ACIT VS. SHRI KAMLESH H. SONI AY : 2010-2011 3 EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS.10 LAC S. THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 1 ST MAY, 2017 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/05/2017 *BT ! '! / 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, TRUE COPY / (DY./ASSTT.REGISTRAR) & , / ITAT, AHMEDABAD