The DCIT, Circle-10, Ahmedabad V. Shri Mahendra R. Verma, Ahmedabad

ITA 2370/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9150 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-03-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 22-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Depreciation; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO. 2370/AHD/2012 / ASSESSMENT YEAR: 2003-04 DY. COMMISSIONER OF INCOME-TAX, CIRCLE-10, AHMEDABAD VS SHRI MAHENDRA R. VERMA, PROP. M/S. COMFY, PIYURAJ CHAMBERS, SWASTIK CROSS ROAD, NAVRANGPURA, AHMEDABAD PAN : AAKPV 9144 N / (APPELLANT) ! / (RESPONDENT) REVENUE BY : SONIA KUMAR, SR DR ASSESSEE(S) BY : NONE / DATE OF HEARING : 21/03/2016 / DATE OF PRONOUNCEMENT: 22/03/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XVI, AHMED ABAD, DATED 31.07.2012 FOR ASSESSMENT YEAR 2003-04, ON THE FOLL OWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE PENALTY OF RS.3,21,500/- LEVIED U/S 271(1)(C) OF THE ACT WITH R EFERENCE TO DISALLOWANCE MADE ON ACCOUNT OF WRONGFUL CLAIM OF U NABSORBED DEPRECIATION OF RS.10,75,041/- WITHOUT PROPERLY APP RECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY T HE AO. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. ITA NO. 2370/AHD/2012 DCIT VS. SHRI MAHENDRA R. VERMA AY : 2003-04 2 3. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE ORDER OF THE ASSESSING OFFICE R BE RESTORED TO THE ABOVE EXTENT. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED B Y THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY THE DELETION OF P ENALTY OF RS.3,21,500/- LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF TH E ACT WITH REGARD TO DISALLOWANCE MADE ON ACCOUNT OF WRONGFUL CLAIM OF U NABSORBED DEPRECIATION OF RS.10,75,041/- AND THE TAX EFFECT O F WHICH IS BELOW RS.10 LACS. AS PER THE ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10.12.2015 (CIRCULAR NO.21 OF 2015), NO DEPAR TMENT APPEALS ARE TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX APPELLATE TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS.10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WI LL APPLY RETROSPECTIVELY TO THE PENDING APPEALS. IN THE PRESENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT THE TAX EFFECT IS LESS THAN RS.10 LACS, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INSTRUCTIONS OF TH E AFORESAID CBDT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABL E ON ACCOUNT OF LOW TAX EFFECT. THE PRESENT APPEAL DESERVES TO BE DISM ISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CA SE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION S. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE ASSESSING OFFICER, IT CAME TO THE NOTICE THAT THE T AX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN TH E INSTRUCTION, THEN THE ITA NO. 2370/AHD/2012 DCIT VS. SHRI MAHENDRA R. VERMA AY : 2003-04 3 DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOU R YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 3. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON 22 ND MARCH, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 22/03/2016 *BIJU T. $ %&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD