The DCITBharuch Circle, Bharuch V. Shri Patel Yunus Ibrahim, Bharuch

ITA 2285/AHD/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1909 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 08-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: S N DIVETIA
• Keywords: Unexplained investment; Retrospective amendment; Tax effect

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA.NO.2285/AHD/2010 WITH CO NO.244/AHD/2010 / ASSTT. YEAR: 2006-2007 DCIT, BHARUCH CIRCLE BHARUCH. VS SHRI PATEL YUNUS IBRAHIM MONA PALACE, A/4, RIZOOM PARK JAMBUSAR, ROAD, BHARUCH. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI DINESH SINGH, SR.DR ASSESSEE BY : SHRI S.N. DIVETIA / DATE OF HEARING : 16/03/2016 / DATE OF PRONOUNCEMENT: 01/04/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF THE LD.CIT(A)-VI, BARODA DATED 21.4.2010 PASSED FOR THE ASSTT.YEAR 2006- 07. ON RECEIPT ISSUANCE OF NOTICE IN THE APPEAL OF THE REVENUE, THE ASSESSEE HAS ALSO FILED CROSS OBJECTION BEARING NO. 244/AHD/2010 ON 11.8.2010. BOTH THE APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE ARE DISPOSED OF BY THIS CONSOLIDATED ORDER. ITA NO.2295/AHD/2010 WITH CO 2 2. THE ONLY EFFECTIVE ISSUE AGITATED BY THE REVENUE IN THIS APPEAL IS AGAINST DELETION OF ADDITION OF RS.12,00,000/- MADE BY THE AO ON ACCOUNT OF UNACCOUNTED INVESTMENT IN FUTURE AND INT ERIOR OF HOUSE AND OFFICE BUILDING. 3. QUA THE APPEAL OF THE REVENUE, THE LD.COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE PRESENT APPEAL FILED BY THE REVE NUE IS NOT MAINTAINABLE IN VIEW OF THE RECENT CBDT INSTRUCTION S DIRECTING THE DEPARTMENT NOT TO FILE APPEAL, WHERE TAX EFFECT IS BELOW RS.10 LAKHS. THE LD.COUNSEL HAS SUBMITTED THAT THE TAX EFFECT ON THE IMPUGNED ADDITION IS LESS THAN RS.10 LAKHS, AND THEREFORE, T HE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. THE LD.DR HAS NOT DISPUTED THE CBDT INSTRUCTIONS R ELIED UPON BY THE ASSESSEE NOR THE TAX EFFECT ON THE IMPUGNED ADD ITION AGITATED BY THE REVENUE IN THIS APPEAL BEING BELOW RS.10 LAKHS. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 8.8.2010. 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, ADDITION IMPUGNED BY THE REVENUE IS RS.12,00, 000/-. IN ACCORDANCE WITH THE ABOVE CBDT CIRCULAR THE TAX EFF ECT ON THE SAME WOULD BE LESS THAN RS.10 LAKHS, AND THEREFORE, THE PRESENT APPEAL OF THE ITA NO.2295/AHD/2010 WITH CO 3 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 APPEAL OF THE REVENUE IS DISMISSED. 5. THE CROSS-OBJECTION FILED BY THE ASSESSEE, HAS N OT BEEN PRESSED FOR ADJUDICATION, HENCE, THE SAME IS DISMISSED FOR WANT OF PROSECUTION. 6. IN THE RESULT, THE APPEAL OF THE REVENUE AND CO OF THE ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 1 ST APRIL, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/04/2016