The ITO, Ward-Ward-4, Gandhinagar V. M/s. Shubh Developers, Gandhinagar

ITA 2454/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9309 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Assessee Lawyers: DHIREN SHAH AR
• Keywords: Audit objection; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO. 2454/AHD/2012 ( / ASSESSMENT YEAR : 2009-10) THE INCOME TAX OFFICER WARD-4 GANDHINAGAR / VS. M/S.SHUBH DEVELOPERS S/7, APNA BAZAR SECTOR NO.6 GANDHINAGAR- 382 006 ./ ./ PAN/GIR NO. : AAKCS 9691 L ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI J.P. JANGID, SR.DR #' % $ / RESPONDENT BY : SHRI DHIREN SHAH, AR &'( % ) / DATE OF HEARING 10/02/2016 *+, % ) / DATE OF PRONOUNCEMENT 16/02/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-GANDHINAGAR [CIT(A) IN SHORT] DATED 09/08/2012 PERTAINING TO ASSESSMENT Y EAR (AY) 2009-10. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- ITA NO.2454 /AH D/2012 ITO VS. M/S.SHUBH DEVELOPERS ASST.YEAR 2009-10 - 2 - 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON F ACTS IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF SUPPRESSI ON OF SALES OF RS.20,69,000/-. 2. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF DISALLOWI NG DESIGNING EXPENSES OF RS.1,25,000/-. 3. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF DISALLOWI NG BROKERAGE EXPENSES OF RS.1,16,000/-. 4. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF UNDERSTAT EMENT OF CLOSING STOCK RELATED TO WORK IN PROGRESS OF RS.5,4 0,663/-. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.C IT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEARNE D CIT(APPEALS) MAY BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE A BOVE EXTENT. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSE SSEE CONTENDED THAT AS PER CENTRAL BOARD OF DIRECT TAXES CIRCULAR NO. 2 1/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBE R 2015, THE REVISED LIMIT FOR PREFERRING REVENUE'S APPEALS IS R S. 10 LACS. HE SUBMITTED THAT THE TOTAL TAX LIABILITY IN THE PRESE NT REVENUE'S APPEAL IS RS.8,80,855/- WHICH IS BELOW THE PRESCRIBED LIMIT O F RS. 10 LACS. HE HAS ALSO SUBMITTED A WORKING OF LOW TAX EFFECT WHICH IS REPRODUCED HEREUNDER:- ITA NO.2454 /AH D/2012 ITO VS. M/S.SHUBH DEVELOPERS ASST.YEAR 2009-10 - 3 - PARTICULARS AMOUNT RS. ADDITION ON ACCOUNT OF SUPPRESSION ON SALE PROCEEDS OF ROW & FLATS 20,69,000 DISALLOWANCE OF DESIGNING EXPENSE 1,25,000 DISALLOWANCE OF BROKERAGE EXPENSE 1,16,000 ADDITION ON ACCOUNT OF UNDERSTATEMENT OF CLOSING STOCK 5,40,663 28,50,663 TAX @ 30% ON 2850663 8,55,199 TOTAL 8,55,199 EC @ 2% ON 855199 17,104 EC @ 1% ON 855199 8,552 TOTAL TAX LIABILITY 8,80,855 2.1. THE LD.COUNSEL FOR THE ASSESSEE, THEREFORE, PLEADED THAT IN VIEW OF THE CBDT CIRCULAR, THE REVENUE'S APPEAL MAY BE DISM ISSED AS THE TAX EFFECT BEING BELOW THE PRESCRIBED LIMIT. 3. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CO NTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE AS SESSEE. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. WE FIND THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WHICH IT HAS BE EN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE COMMISSIONER OF INC OME-TAX (APPEALS)S ORDER IS BELOW RS. 10 LAKHS, THEN THAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD H AS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREI N IT HAS BEEN PROVIDED ITA NO.2454 /AH D/2012 ITO VS. M/S.SHUBH DEVELOPERS ASST.YEAR 2009-10 - 4 - 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 UNDISCL OSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS. 10 LA KHS. THEREFORE, THE PRESENT APPEAL OF THE REVENUE IS NOT MAINTAINABLE A ND HENCE DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON TUESDAY, THE 16 TH DAY OF FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 16/ 02 /2016 0)..& , '.&../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-GANDHINAGAR 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD