The ACIT, Circle-5, Ahmedabad V. Rajkamal Builder Infrastructure Pvt. Ltd, Ahmedabad

ITA 252/AHD/2013

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6365 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 20-11-2019
• Assessment Year: 2002-2003
• Appeal Filed On: 29-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Retrospective amendment; Tax effect
• Section: 201; 268A; 2

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS MADHUMITA ROY, JUDICIAL MEMBER ./ ITA NO. 252/AHD/2013 / ASSTT. YEAR: 2002 - 2003 A .C.I.T , CIRCLE - 5, AHMEDABAD VS . M/S. RAJKAMAL BUILDERS INFRASTRUCTURE PVT. LTD. , 54, PARKHIL SOC., OPP. KARNAWATI CLUB , NR. HEAVEN PARK , RAMDEVNAGAR, SATELLITE, AHMEDABAD - 380015 . PAN : AABCR0326A (APPLICANT) ( RESPONENT ) REVENUE BY : SHRI L.P. JAIN , SR. D.R ASSESSEE BY : SHRI MEHUL K. PATEL , A.R / DATE OF HEARING : 06 / 08 / 201 9 / DATE OF PRONOUNCEMENT: 16 / 10 /201 9 / O R D E R PER W ASEEM AHMED , ACCOUNTANT MEMBER : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XI , AHMEDABAD , ( IN SHORT LD. CIT(A) ) DATED 14/11/2012 ARISING IN THE MATTER OF PENALTY ORDER PASSED U/S.271(1)(C) OF THE INCOME - TAX ACT 1961, (HERE - IN - AFTER REFE RRED TO AS THE ACT ) DATED 16/03/2011 RELEVANT TO ASSESSMENT Y EAR 2002 - 20 03 . 2. THE SOLITARY GRIEVANCE OF REVENUE IS THAT LD.CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.13,85,090/ - LEVIED ITA NO. 252/AHD/2013 A.Y. 2002 - 2003 2 U/S.271(1)(C) OF THE ACT AGAINST DISALLOWANCES BY WRONGLY HOLDING THAT ASSESSEE WAS NOT HAVING INTENTION TO DEFRAUD THE REVENUE. 3. A FTER GOING THROUGH THE GRO UNDS OF APPEAL AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW, A QUERY WAS RAISED BY THE BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIRCULAR NO. 3/2018 DATED 11.7.2018 RESTRICTING THE F ILLING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKHS . IN REPLY TO IT T HE LD. DR DID NOT DISPUTE THE SAME AND LEFT THE ISSUE AT THE TRIBUNAL WITH THE PRAY TO D ECIDED THE SAME BY LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE WA S PRESENTED ON 29 /0 1/2013 . ON 11/07/2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007 - ITJ(PT) PROHIBITING ITS SUBORDINATE AUTHORITIES FROM THE FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE LD. CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE LD. CIT(A) IS LESS THAN RS. 20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN TH E PRESENT CASE, TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FILED , IS LESS THAN RS.20 LAKHS. FURTHER, THE CASE OF THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESER VES TO BE DISMISSED . IT IS ACCORDINGLY DISMISSED . HOWEVER, IT IS OBSERVED THAT IN THE CASE ON RE - VERIFICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR ITA NO. 252/AHD/2013 A.Y. 2002 - 2003 3 REVENUE S CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIB UNAL FOR THE RECALL OF THIS ORDER. SUCH AN APPLICATION SHOULD BE FILED WITHIN THE PERIOD PRESCRIBED UNDER THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE COURT ON 16 /10 /2019 AT AHMEDABAD. - SD - - SD - ( MS MADHUMITA ROY ) JUDICIAL MEMBER ( WASEEM AHMED ) ACCOUNTANT MEMBER (TRUE CO P Y) AHMEDABAD; DATED 16 / 10 /201 9 MANISH