The ACIT, Circle-4, Ahmedabad V. Galaxy Real Estate Developers Pvt.Ltd., Ahmedabad

ITA 2428/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9412 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 31-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAMES KUREIN
• Assessee Lawyers: P M MEHTA
• Keywords: Tax effect
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM & ANIL CHATURVEDI, AM. ITA NO.2428/AHD/2012 ASST. YEAR 2008-09 ACIT, CIR-4, AHMEDABAD. VS GALAXY REAL ESTATE DEVELOPERS PVT. LTD., 10 TH FLOOR COMMERCE HOUSE, NR. JUDGES BUNGLOW ROAD, BODAKDEV, AHMEDABAD. (APPELLANT) (RESPONDENT) PA NO. AABCG 4180H APPELLANT BY MR. JAMES KUREIN, SR.DR RESPONDENT BY SHRI P.M. MEHTA, AR DATE OF HEARING: 12/02/2016 DATE OF PRONOUNCEMENT: 2/03/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THE REVENUE HAS FILED THE APPEAL AND ASSESSEE HAS FILED THE CROSS OBJECTION AGAINST THE ORDER OF CIT(A)-VIII, A HMEDABAD DATED 30/08/2012 PASSED FOR ASST. YEAR 2008-09. 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT( A) HAS ERRED IN RESTRICTING THE DISALLOWANCE TO 4,07,301/- AND THER EBY DELETING THE ADDITION OF RS.10,56,023/- OUT OF TOTAL ADDITION OF RS.14,63,324/-, ITA NO.2428/AHD/2012 ASST. YEAR 2008-09 2 WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD INCURRED HUGE INTEREST EXPENSES AND MADE SUBSTANTIAL INVESTMENT F ROM WHICH HE HAD DERIVED NON-TAXABLE INCOME AND WAS NOT OFFERING ANY PROPORTIONATE DISALLOWANCE AS PRESCRIBED IN SECTION 14A OF THE ACT. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THIS APPEAL WAS PRESENTED O N 31.10.2012. 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 EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.1 0 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSP ECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. THE TAX EFFECT ON DELETION OF THIS T OTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INST RUCTIONS. THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVID ED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, W HILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE , IN CASE, ON RE- VERIFICATION AT THE END OF THE AO, IT CAME TO THE N OTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCE PTIONS PROVIDED IN THE ITA NO.2428/AHD/2012 ASST. YEAR 2008-09 3 INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE AB OVE, THE APPEAL OF THE REVENUE BEING NON-MAINTAINABLE, IS DISMISSED. 4. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 02/03/2016 SD/- SD/- (RAJPAL YADAV) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2/03/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD ITA NO.2428/AHD/2012 ASST. YEAR 2008-09 4 1. DATE OF DICTATION:12/02/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 15/02/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 2/3/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: