The ITO, Ward-7(1), Ahmedabad V. Nam Group Aslali, Ahmedabad

ITA 2459/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9160 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 20 day(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: 2009-2010
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR SR DR S P F JAIN
• Keywords: Audit objection; 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. 2459/AHD/2012 AND CO NO.239/AHD/2012 / ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER, WARD 7 (1), AHMEDABAD VS NAM GROUP ASLALI, C/O. ASLALI STORAGE HOUSE, BLOCK NO.3954, NH NO.8, ASLALI BY-PASS, ASLALI, AHMEDABAD-382427 PAN : AAAAN 0551 C / (APPELLANT) ! / (RESPONDENT) REVENUE BY : SONIA KUMAR, SR DR ASSESSEE(S) BY : P.F. JAIN, AR / 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 AND THE CROSS-OBJE CTION THEREOF FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XIV, AHMEDABAD , DATED 30.08.2012 FOR ASSESSMENT YEAR 2009-10. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL:- 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOL DING THAT THE INCOME RECEIVED BY THE ASSESSEE ON SUBLETTING L EASED PROPERTY WAS TAXABLE AS INCOME FROM HOUSE PROPERTY. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. ITA NO. 2459/AHD/2012 & CO NO.239/AHD/2012 ITO VS. NAM GROUP ASLALI AY : 2009-10 2 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A) MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCU LAR NO.21 OF 2015 DATED 10.12.2015. HE HAS ALSO SUBMITTED THAT IN TH E PRESENT CASE THE TAX EFFECT IS RS.3,59,571/- WHICH IS BELOW THE PRES CRIBED LIMIT OF RS.10 LACS AND HE HAS PLACED ON RECORD THE WORKING FOR TH E SAME. THE LD. COUNSEL FOR THE ASSESSEE ALSO REQUESTED FOR WITHDRA WAL OF THE CROSS- OBJECTION FILED BY THE ASSESSEE IN VIEW OF THE AFOR ESAID CBDT CIRCULAR. 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 PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 I N F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10 TH DECEMBER 2015, VIDE WHICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE CO MMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS.10,00,000/ -, THEN THAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURT HER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTION S WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUA SHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS , ETC. WE FIND THAT ITA NO. 2459/AHD/2012 & CO NO.239/AHD/2012 ITO VS. NAM GROUP ASLALI AY : 2009-10 3 THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS.10,00,000/-. IT IS FURTHER OBSERV ED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE ASSESSIN G OFFICER, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DE PARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOUR YEARS OF TH IS ORDER. IN VIEW OF ABOVE, THE APPEAL OF THE REVENUE AND THE CROSS-OBJE CTION THEREOF FILED BY THE ASSESSEE, BOTH ARE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS-OBJECTION OF THE ASSESSEE, BOTH ARE DISMISSED. 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