The DCIT, Circle-2, Ahmedabad V. Shri Shyouraj Singh B. Chouhan, Ahmedabad

ITA 2696/AHD/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1912 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 31-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 16-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NRENDRA SINGH
• Keywords: Tax effect
• Section: 43B

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA.NO.2696/AHD/2010 / ASSTT. YEAR: 2007-2008 DCIT, CIR.2 AHMEDABAD. VS SHRI SHYOURAJ SINGH B. CHAUHAN PROP: PERFECT SECURITY SERVICE COMM.CENTRE 240, SARVODAYA SALAPOSE ROAD, GPO AHMEDABAD. PAN : AABPC 8119 P ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI NRENDRA SINGH, SR.DR ASSESSEE BY : SHRI SAKAR SHARMA / DATE OF HEARING : 31/03/2016 / DATE OF PRONOUNCEMENT: 01/04/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF THE LD.CIT(A)-VII, AHMEDABAD DATED 3.5.2010 PASSED FOR THE ASSTT.YEAR 2007-08. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO.2696/AHD/2010 2 1. THE LD. CIT(A) ERRED LAW IN DELETING THE ADDITION OF RS.27,23,250/- IN RESPECT OF REMITTANCE OF EMPLOYEE 'S CONTRIBUTION TO PF, WHICH WAS MADE BEYOND THE PRESCRIBED DUE DAT E. 2. THE LD. CIT(A) ERRED IN LAW IN DELETING THE ADDITION OF RS.2,06,010/ IN RESPECT OF REMITTANCE OF EMPLOYEE'S CONTRIBUTION TO ESI WHICH WAS MADE BEYOND THE PRESCRIBED DUE DATE. 3. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE DELAYED REMITTANCE O F EMPLOYEE'S CONTRIBUTION TO THE PF AND ESI HAVE TO BE CONSIDERE D AS PER PROVISIONS OF SECTION 2(24)(X) AND 36(1 )(VA) OF TH E I.T.ACT AND NOT AS PER SECTION 43B OF THE ITACT. 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE PRESENT APPEAL FILED BY THE REVENUE IS NOT MAINTAIN ABLE IN VIEW OF THE RECENT CBDT INSTRUCTIONS DIRECTING THE DEPARTMENT N OT TO FILE APPEAL, WHERE TAX EFFECT IS BELOW RS.10 LAKHS. THE LD.COUN SEL HAS SUBMITTED THAT THE TAX EFFECT ON THE IMPUGNED ADDITION IS LESS THA N RS.10 LAKHS, AND THEREFORE, THE APPEAL OF THE REVENUE IS NOT MAINTAI NABLE. THE LD.COUNSEL HAS FILED A COMPUTATION SHEET TO SHOW THAT THE TAX EFFECT IS BELOW RS.10 LAKHS. IT READS AS UNDER: THE AMOUNT IN DISPUTE : RS.29,29,260 TAX @ 30% : RS.8,78,778/- SURCHARGE @ 10% : RS. 87,878/- RS.9,66,656 EDUCATION CESS @ 2% : RS. 19,333/- TOTAL TAX : RS.9,85,989/- THE LD.DR HAS NOT DISPUTED THE CBDT INSTRUCTIONS R ELIED UPON BY THE ASSESSEE NOR THE ABOVE CALCULATION OF TAX EFFEC T ON THE IMPUGNED ADDITION AGITATED BY THE REVENUE IN THIS APPEAL. ITA NO.2696/AHD/2010 3 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 16.9.2010 BEFORE THE TRIBUNAL. ON 10.12.2015 THE CBDT HAS IS SUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUT HORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL 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 RET ROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, AGGREGATE AMOUNT IN DIS PUTE IS RS.29,29,260/- AND THE TAX EFFECT THEREON WOULD BE LESS THAN RS.10 LAKHS, THEREFORE, THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMIS SED BEING TREATED TO BE FILED IN VIOLATION OF THE ABOVE CBDT INSTRUCTION S. FURTHER, THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVID ED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING TH E APPEALS, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, O N RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX E FFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INST RUCTION, 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. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 1 ST APRIL, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/04/2016