ITO, Kanpur V. K.N. Agarwal, Kanpur

ITA 26/LKW/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9175 (ITAT-LUCKNOW)
• Duration Of Justice: 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 24-01-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 20-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Assessee Lawyers: ABHNIVA MEHROTRA
• Keywords: Tax effect
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH, LUCKNOW. BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NO.26(LKW.)/2011 A.Y. : 1997-98 THE I.T.O.-3(2) VS. SHRI K.N.AGARWAL, KANPUR. 80/86, LATOUCHE ROAD, KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.K.BAJAJ, D.R. RESPONDENT BY : SHRI ABHNIVA MEHROTRA, C.A. O R D E R THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE O RDER OF THE CIT(A), MUZAFFARNAGAR (HOLDING CONCURRENT CHARGE OF CIT(A)- II, KANPUR) DATED 8.10.2010 RELATING TO ASSESSMENT YEAR 1997-98. 2. IN THIS APPEAL, THE ASSESSEE HAS TAKEN THE FOLLO WING GROUNDS: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-I I, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDIT IONS /DISALLOWANCES AFTER CONSIDERING THE ADDITIONAL EVI DENCES DURING THE COURSE OF APPELLATE PROCEEDINGS WHICH WERE NEVE R PRODUCED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF A SSESSMENT PROCEEDING. ALSO, NO PROPER OPPORTUNITY HAS BEEN AL LOWED TO THE ASSESSING OFFICER TO EXAMINE THESE EVIDENCES AS PROVIDED UNDER RULE 46A OF THE INCOME TAX RULES, 1962. 2. THE LEANED COMMISSIONER OF INCOME TAX (APPEALS)- II, KANPUR HAS NOT CONSIDERING THE FACT THAT THE ASSESSEE HAS FAILED TO MAKE COMPLIANCE BEFORE THE ASSESSING OFFICER AS PER THE DIRECTION OF THE HON'BLE ITAT INSPITE OF INNUMERABLE OPPORTUNITI ES GRANTED BY THE ASSESSING OFFICER. 2 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, KANPUR HAS ERRED IN LAW AS WELL AS ON FACTS IN ADMITTING THE C ONTENTION OF THE ASSESSEE THAT THE FACTUM OF PURCHASE OF SHARES WAS DONE BY 'BORROWED MONEY' WAS DECIDED U/S 154 OF THE INCOME TAX ACT, 1961 BY THE THEN CIT(A) WHEREAS THE DECISION OF CI T(A) SPEAKS OF ONLY MONEY AND NOT BORROWED MONEY. 4. THAT THE ORDER OF THE LD. CIT(A)-II, KANPUR DATE D 8.10.2010 NEEDS TO BE QUASHED AND THE ORDER PASSED BY THE ASS ESSING OFFICER DATED 24.02.2006 BE RESTORED. 5. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL MENTIONED ABOVE AND / OR TO ADD ANY FRESH GR OUNDS AS AND WHEN IT IS REQUIRED TO DO SO. 3. DURING THE COURSE OF HEARING, THE LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUTSET, STATED THAT THE TAX EFFECT IN THIS APP EAL IS LESS THAN RS.2 LACS AND, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THE APPEAL IN VIEW OF THE BOARDS CIRCULAR ISSUED BY THE C.B.D.T. 4. AFTER HEARING THE LD. REPRESENTATIVES OF BOTH THE PARTIES, I FIND THAT IN REVENUES APPEAL TAX EFFECT IS LESS THAN RS.2 LA CS AND ADMITTEDLY, THE APPEAL WAS FILED ON 20.1.2011. IT IS NOTICED THAT THE C.B.D.T. HAS ISSUED INSTRUCTION NO.5 OF 2008 DATED 15.5.2008, BY WHICH THE C.B.D.T. HAS REVISED THE MONETARY LIMIT TO RS.2 LACS FOR FILING THE APPE ALS BEFORE THE TRIBUNAL. KEEPING IN VIEW THE C.B.D.T. INSTRUCTION NO.5 OF 20 08 DATED 15.5.2008, I AM OF THE VIEW THAT THE REVENUE SHOULD NOT HAVE F ILED THIS APPEAL BEFORE THE TRIBUNAL AFTER THE DATE OF ISSUANCE OF THE AFOR ESAID INSTRUCTION. RECENTLY, THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V . CONCORD PHARMACEUTICALS, (2008) 220 CTR GUJARAT 117 HAS UPH ELD THE ORDERS OF I.T.A.T. AHMEDABAD BENCHES DISMISSING THE APPEALS O F THE REVENUE ON THE 3 GROUND THAT TAX EFFECT WAS LESS THAN THE LIMIT PRE SCRIBED BY C.B.D.T. IN ITS CIRCULARS ISSUED FROM TIME TO TIME. 5. IN VIEW OF THE ABOVE, WITHOUT GOING INTO THE MER ITS OF THE CASE, I DISMISS THE APPEAL FILED BY THE REVENUE. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 24 .1.2011. SD. (N.K.SAINI) ACCOUNTANT MEMBER JANUARY 24TH ,2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.