The ITO,S.K. Ward-3, Himatnagar V. Shri Kirankumar Vadilal Shah, Himatnagar

ITA 2526/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9854 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 12-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 28-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIV SEWAK
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2526/AHD/2015 /BLOCK ASSTT. YEAR: 2008-2009 ITO, S.K., WARD-3 HIMATNAGAR. VS KIRANKUMAR VADILAL SHAH PROP: VALLABH TRADERS 29, KOTIYARK SOCIETY CHHAPARIYA ROAD, HIMATNAGAR 383 001. PAN : ACDPS 9860 K %& / (APPELLANT) '( %& / (RESPONDENT) REVENUE BY : SHRI SHIV SEWAK, SR.DR ASSESSEE BY : SHRI TUSHAR HEMANI, AR / DATE OF HEARING : 12/01/2016 / DATE OF PRONOUNCEMENT: 13/01/2016 )*/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LD.COMMISSIONER INCOME-TAX (APPEALS)-2, AHMEDABAD D ATED 5.6.2015 PASSED FOR THE ASSTT.YEAR 2008-09. 2. SOLE GROUND RAISED BY THE REVENUE IN THE APPEAL READS AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.8,15,632/- LEVIED U/S.271(1)(C) OF TH E ACT ON ADDITION OF RS.23,99,620/- MADE BY THE AO ON ACCOUNT OF UNDISCL OSED INCOME. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT APPEAL FILED BY THE REVENUE IS HIT BY THE CBDT CIRCULAR NO .21/2015 DATED 10.12.2015, WHEREBY, THE BOARD HAS DIRECTED THE DEP ARTMENT NOT TO FILE DEPARTMENTS APPEAL BEFORE THE TRIBUNAL, WHERE THE TAX EFFECT IS BELOW RS.10 ITA NO.2526/AHD/2015 2 LAKHS, AND AS SUCH THE PRESENT APPEAL OF THE REVENU E IS LIABLE TO BE DISMISSED IN LIMINE . THE LD.DR, HAS NOT CONTROVERTED TO THE DIRECTION S OF THE CBDT CONTAINED IN THE ABOVE CIRCULAR. 4. I FIND THAT THIS APPEAL WAS PRESENTED ON 28.05.2 012. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PR OHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUN AL 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.10 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRU CTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE ASS ESSED INCOME OF THE ASSESSEE IS OF RS.25,17,100/-. THE TAX EFFECT ON THE ADDITI ON OF RS.23,99,620/- ON WHICH IMPUGNED PENALTY HAS BEEN IMPOSED IS LESS THA N RS.10 LAKHS. THEREFORE, THE PRESENT APPEAL DESERVES TO BE DISMIS SED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. FURTHER, THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION S. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPEALS, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END O F THE AO, 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 DEPARTMENT WILL BE AT LIB ERTY 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 ABOVE, THE APP EAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 13 TH JANUARY, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 13/01/2016