A.C.I.T ,AKOLA CIRCLE, Akola V. SHRI CHANDRKANT SUBHASHRAO THAKRE,(HUF), WASHIM

ITA 236/NAG/2015

• Counselvise Citation: [2014] 117 COUNSELVISE.COM (IT) 8878 (ITAT-NAGPUR)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 23-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 31-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K BARAL
• Assessee Lawyers: R V LOYA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 236 / NAG/2015 ASSESSMENT Y EAR: 2011 - 12 THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE, FIRST FLOOR, AAYAKAR BHAVAN, MURTIZAPUR RAOD , AKOLA - 444001 VS. SHRI CHANDRAKANT SUBHASHRAO - THAKRE (HUF), AT POST KASOLA, TQ MANGRULPIR, DIST. WASHIM 444505 PAN : AABHC6338Q (APPELLANT) (RESPONDENT) REVENUE BY : SHRI R.K. BARAL (SR. D R) ASSESSEE BY : SHRI R.V. LOYA (AR ) DATE OF HEARING: 11 /05 /201 8 DATE OF PRONOUNCEMENT: 11 / 05 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST THE ORDER DATED 24.04.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - I , NAGPUR, WHEREBY THE LD. CIT (A ) HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER PA SSED BY THE LD.CIT (A) ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS. 32,23,767/ - MADE BY THE ASSESSING OFFICER TO THE RETURNED INCOME ON ACCO UNT OF EXCESSIVE AND UNREASONABLE EXPENDITURE UNDER THE HEAD SALARIES IN RESPECT OF PAYMENTS MADE TO RELATED PARTIES AS ENVISAGED UNDER SECTION 40A(2). 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (APPEALS) HAS ERRED IN DISREGARD ING THE FACTS NOTED IN THE ASSESSMENT 2 ITA NO. 236 / NAG /2015 ASSESSMENT YEAR: 201 1 - 1 2 ORDER AND IN NOT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO DISCHARGE THE INITIAL BURDEN OF PROVING THE REASONABLENESS OF THE EXPENDITURE WHICH RESTED ON HIM. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT (APPEALS),HIMSELF BEING A FACT FINDING AUTHORITY AS WELL AS, HAS ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER FOR THE REASONS THAT THE ASSESSING OFFICER HAD NOT ACTUALLY EXAMINED THE VERACITY OF THE PAYMENTS MADE, AS NOT ED IN PARAGRAPH 6.00 OF THE ORDER, INSTEAD OF GIVING HIS FINDINGS OF FACT OR CAUSING SUCH EXAMINATION AS WAS NECESSARY IN HIS OPINION. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THE TAX EFFECT PERTAINING TO THE AMOUNT DISPUTED BY TH E REVENUE IS LESS THAN THE MONITORY LIMIT OF RS. 10 LACS FIXED BY THE CBDT IN CIRCULAR NO. 21 OF 2015 DATED 10 TH DECEMBER 2015, THEREFORE THE PRESENT IS NOT MAINTAINABLE. 4. THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT IN DEPARTMENTS APPEAL IS BE LOW RS. 10 LAKHS, W E FIND THAT THE ISSUE RAISED IN APPEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE CIRCULAR. SINCE, IT HAS BEEN SPECIFICALLY CLARIFIED IN THE CIRCULAR AFORESAID THAT THE INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS; THE PRESENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMISS THE SAME IN LIMINE . IN THE RESULT, APPEAL FILED BY THE REVENUE FOR A SSESSMENT YEAR 2011 - 2012 DISMISSED AS NOT MAINTAINABLE. ORDER PR ONOUNCED IN THE OPEN COURT ON 11 TH MAY , 2018 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR, DATED: 11 / 0 5 /20 1 8 ALINDRA, PS 3 ITA NO. 236 / NAG /2015 ASSESSMENT YEAR: 201 1 - 1 2 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) 4. CIT 5. DR, ITAT, NAGPUR 6. GUARD FILE . BY ORDER, / /TRUE COPY// ( SR. PS/PS ) ITAT, NAGPUR