The ITO, Ward-9(4)., Ahmedabad V. Shri Sanjay Arvindkumar Shah, Ahmedabad

ITA 2480/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1009 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 06-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3)

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI S. S. GODARA, JM, AND SHRI MANISH BORAD , AM ./ITA.NO.2480/AHD/2012 ( / ASSTT YEAR : 2008-09) ITO, WARD 9(4), AHMEDABAD. VS. SHRI SANJAY ARVINDKUMAR SHAH, 604, RAVI SAURAM TOWERS, NR. JAIN TEMPLE, VASANA, AHMEDABAD. PAN ADAPS 7321K (APPELLANT) (RESPONDENT) / APPELLANT BY: MR. SATISH SOLANKI, SR.DR / RESPONDENT BY: SHRI S. N. DIVETIA, AR / DATE OF HEARING 22/07/2016 /DATE OF PRONOUNCEMENT 22/07/2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THIS APPEAL OF REVENUE IS DIRECTED AGAINST THE OR DER OF LD.CIT(A)- XV, AHMEDABAD, DATED 6.8.2012 PASSED AGAINST THE O RDER U/S 143(3) OF THE IT ACT, 1961(IN SHORT THE ACT) DT.20.12.2010 F RAMED BY ITO, WD- 9(4), AHMEDABAD. 2. GRIEVANCES OF THE REVENUE, IN THIS APPEAL ARE AS UNDER :- 1) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.27,02,465/- MADE ON ACCOUNT OF FREIGHT EXPENSES U/S.40(A)(IA) OF TH E ACT. ITA.NO.2480/AHD/2012 - 2 1A) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE DISALLOW ANCE UNDER PROVISION OF SECTION 40(A) (IA) OF THE ACT, WOULD BE A TTRACTED ONLY IN RESPECT OF THE 'PAYABLE 1 AMOUNT OF EXPENDITURE AS ON 31 ST . MARCH OF THE RELEVANT PREVIOUS YEAR. 2) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.2,87,972/- MADE ON ACCOUNT OF INTEREST PAYMENT U/S.40(A)(IA) OF T HE ACT. 3) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-X V, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS,3,08,046/- MADE OUT OF VARIOUS EXPENSES. 4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, TH E LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD OUG HT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 5) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THIS APPEAL WAS PRESENTED ON 06/11/2012. ON 10. 12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PR OHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRU CTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEAL ALSO. THE TAX EFF ECT ON DELETION OF THE TOTAL ADDITION IN THIS APPEAL WOULD BE LESS THAN RS .10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN TH E AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVE D THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR THEY FALL WITHIN THE AMBIT OF EXC EPTIONS PROVIDED IN THE ITA.NO.2480/AHD/2012 - 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 LIMITATION PROVIDED IN LAW. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 22 ND JULY, 2016 AT AHMEDABAD. SD/- (S. S. GODARA) JUDICIAL MEMBER SD/- (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 22/07/2016 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , ,012 /DR,ITAT, AHMEDABAD, 6. .3 45 / GUARD FILE. ) ' / BY ORDER, ' (0 (ASSTT.REGISTRAR) ITAT, AHMEDABAD ITA.NO.2480/AHD/2012 - 4 1. DATE OF DICTATION .. : 22/7/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 22/6/2016 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FO R PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25/7/2016 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATUR E ON THE ORDER..