The ITO, Ward-2(3), Ahmedabad V. M/s. Shah Mohanlal Kajodimal, Ahmedabad

ITA 2555/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9804 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 05-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 13-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: S N DIVETIA
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3)

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, & MANISH BORAD, AM ./ITA.NO.2555/AHD/2011 ALONG WITH C.O.NO.255/AHD/2011 ( / ASSTT YEAR : 2008-09) ITO, WD-2(3), AHMEDABAD VS. SHAH MOHANLAL KAJODIMAL, 315/1, GVMSAV, NR. S.P. RING ROAD, ODHAV, AHMEDABAD. PAN : ABBFS 9302F (APPELLANT) (RESPONDENT) / APPELLANT BY: SMT. SONIA KUMAR, SR.DR / RESPONDENT BY: SHRI S. N. DIVETIA, AR / DATE OF HEARING 05/01/2016 /DATE OF PRONOUNCEMENT 08-01-2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE APPEAL BY REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER INCOME-TAX (APPEALS)-6, AHMEDABAD DATED 11/08/2011 IN APPEAL N O.CIT(A)- VI/ADDL.CIT.R.2/350/10-11, PASSED FOR THE ASSTT.YEA R 2008-09. ASSESSMENT WAS FRAMED U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) ON 21.11.2010 BY ADDL.CIT, RANGE-2, AHMEDA BAD. IT(SS)A.NO.109/AHD/2012 - 2 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT( A) HAS ERRED IN DELETING THE ADDITION OF RS.33,06,702/- MADE U/S 14 A BY MISINTERPRETING THE PROVISIONS OF RULE 8D. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. AFTER GOING THROUGH THE RECORD, WE FIND THA T THIS APPEAL WAS PRESENTED ON 13.10.2011. ON 10.12.2015 THE CBDT HA S ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SU BORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST T HE 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.51,52,865/-. THE ADDITION DIRECT ED TO BE DELETED BY THE CIT(A) IS RS. 33,06,702/-. THE TAX EFFECT ON DELETI ON OF THIS TOTAL ADDITION 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 THE AMBIT OF EXCEPTIO NS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, W HILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE, IN CAS E, ON RE-VERIFICATION AT IT(SS)A.NO.109/AHD/2012 - 3 THE END OF THE AO, IT CAME TO THE NOTICE THAT THE T AX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN TH E INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOU R YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 4. SINCE THE REVENUES IS DISMISSED, THE CROSS OBJE CTION HAS BECOME INFRACTUOUS AND HENCE THE C.O. IS ALSO DISMISSED AS INFRACTUOUS. 5. IN THE RESULT, THE APPEAL OF REVENUE AND THE CRO SS OBJECTION OF THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 8 TH JANUARY, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER SD/- (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 8/01/2016 ! / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $'# / THE RESPONDENT. 3. %&& ' ( / CONCERNED CIT 4. ' ( ( ) / THE CIT(A)- 5. )* , , +,- /DR,ITAT, RAJKOT 6. *. /0 / GUARD FILE. ' % / BY ORDER, % &+ (ASSTT.REGISTRAR) AHMEDABAD IT(SS)A.NO.109/AHD/2012 - 4 1. DATE OF DICTATION .. : 6/1/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 7/1/2016 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 D ICTATING MEMBER FOR 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 8/1/2016 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER