The ITO,(TDS), Gandhinagar V. Creative Infocity Ltd., Gandhinagar

ITA 2564/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9557 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-02-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 14-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH
• Assessee Lawyers: T P HEMANI AR
• Keywords: Audit objection; Additional evidence; Tax effect
• Section: 201(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER 1-2. ./ I.T.A. NOS. 2563 & 2564/AHD/2011 ( / ASSESSMENT YEAR : 2004-05) THE ITO (TDS) GANDHINAGAR / VS. M/S.CREATIVE INFOCITY LTD. AIRPORT ROAD NR.INDRODA CIRCLE GANDHINAGAR-382 009 ./ ./ PAN/GIR NO. : AAABCC 5034 C ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI JAGDISH, CIT-DR #' % $ / RESPONDENT BY : SHRI T.P. HEMANI, AR &'( % ) / DATE OF HEARING 17/02/2016 *+, % ) / DATE OF PRONOUNCEMENT 17/02/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : BOTH THESE APPEALS BY THE REVENUE ARE DIRECTED AGAI NST THE SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCO ME TAX (APPEALS)- XXI, AHMEDABAD DATED 28.07.2011 PASSED FOR ASSESSME NT YEAR 2004- 05. THE ASSESSEE HAS RAISED THE FOLLOWING COMMON GROUNDS OF APPEAL(S):- ITA NOS.2563 & 2564 /AHD/ ITO VS. M/S.CREATIVE INFOCITY LTD. ASST.YEAR 2004-05 - 2 - 1. THE CIT(A) HAS ERRED IN PASSING TWO SEPARATE APP EAL ORDER I.E. U/S. 201 (1) & 201 (1A) OF THE ACT AGAINST THE SINGLE OR DER PASSED U/S 201 (1) & 201(1 A) OF THE ACT BY THE A.O. ON 30/03/2011 INVOLVING TAX EFFECT OF RS. 4,57,123/- ( U/S 201(1) OF RS. 2,34,604/- & U/S 201(1A) OF THE ACT OF RS.2,22,519/-). 2. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN DELETING THE ORDER PASSED U/S.201(L) OF RS.2,34,604/- & INTEREST CHARGED U/S. 201(1 A) OF THE I T ACT OF RS. 2,22,519/- RESPECTIVELY FOR A.Y. 2004-05 BY THE A.O EVEN THOUGH THE ASSESSEE HAD MADE PAYMEN TS TO THE VARIOUS PERSONS/PARTIES WITHOUT DEDUCTION OF TAX AT SOURCE. 3. THE CIT(A) HAS VIOLATED THE RULE 46 A OF THE I.T RULE BY ACCEPTING ADDITIONAL EVIDENCE WHICH WAS NOT PRODUCED BEFORE T HE A.O. AT THE TIME OF SHOW CAUSE NOTICE ISSUED TO THE ASSESSEE AS TO W HY IT SHOULD NOT BE TREATED AS AN ASSESSEE IN DEFAULT WITHIN MEANING OF SECTION 201(1) ALONG WITH INTEREST U/S 201 (1A) OF THE I.T ACT ON THE PA YMENTS MADE IT WITHOUT DEDUCTION OF TAX AT SOURCE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. 6. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. CIT(A) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EFFECT. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSE SSEE CONTENDED THAT AS PER CENTRAL BOARD OF DIRECT TAXES CIRCULAR NO. 2 1/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBE R 2015, THE REVISED LIMIT FOR PREFERRING REVENUE'S APPEALS IS R S. 10 LACS. HE ITA NOS.2563 & 2564 /AHD/ ITO VS. M/S.CREATIVE INFOCITY LTD. ASST.YEAR 2004-05 - 3 - SUBMITTED THAT THE TAX EFFECT IN THE PRESENT REVENU E'S APPEALS IS BELOW THE PRESCRIBED LIMIT OF RS. 10 LACS. HE, THERE FORE, PLEADED THAT IN VIEW OF THE CBDT CIRCULAR, THE REVENUE'S APPEALS MAY BE DISMISSED AS THE TAX EFFECT BEING BELOW THE PRESCRIBED LIMIT. 3. THE LD.CIT-DEPARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT 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 THE APPEALS OF THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 IN F.NO.279/MI SC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WHICH IT HAS BE EN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE COMMISSIONER OF INC OME-TAX (APPEALS)S ORDER IS BELOW RS. 10 LAKHS, THEN THAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD H AS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREI N IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCL OSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT THE PRESENT CASES DO NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX EFFECT IN BOTH THE CAS ES IS LESS THAN RS.10 LAKHS. THEREFORE, THE PRESENT APPEALS OF THE REVEN UE ARE NOT MAINTAINABLE AND, HENCE, DISMISSED. ITA NOS.2563 & 2564 /AHD/ ITO VS. M/S.CREATIVE INFOCITY LTD. ASST.YEAR 2004-05 - 4 - 5. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE, I.E. ITA NOS.2563 & 2564/AHD/2011 FOR AY 2004-05 ARE DISMISS ED IN LIMINE. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY, THE 17 TH DAY OF FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 17/ 02 /2016 0)..& , '.&../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-XXI, AHMEDABAD 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 17.2.16 (COVERED MATTER, LOW TAX EFFECT) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 17.2.16 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. 17.2.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 17.2.16 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