The ITO, Ward-6(4), Ahmedabad V. Smt. Meenaben R.Prajapati, Ahmedabad

ITA 271/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9885 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 17-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 31-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Additional evidence; Tax effect
• Section: 143(3); 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, & MANISH BORAD, AM. ITA NO.271/AHD/2012 ASST. YEAR: 2008-09 INCOME-TAX OFFICER, WD-6(4) ,AHMEDABAD VS SMT. MEENABEN PRAJAPATI, B-41, JIVAN PARK SOCIETY, ISHANPUR, AHMEDABAD. APPELLANT RESPONDENT PAN -ABCPP 2516R ITA NO.272/AHD/2012 ASST. YEAR: 2008-09 INCOME-TAX OFFICER, WD-6(4) ,AHMEDABAD VS SHRI SHEMAL M. PRAJAPATI B-41, JIVAN PARK SOCIETY, ISHANPUR, AHMEDABAD. APPELLANT RESPONDENT PAN -ALTPP 4633T AND ITA NO.273/AHD/2012 ASST. YEAR: 2008-09 INCOME-TAX OFFICER, WD-6(4) ,AHMEDABAD VS SHRI RAVI MAHENDRABHAI PRAJAPATI, B-41, JIVAN PARK SOCIETY, ISHANPUR, AHMEDABAD. APPELLANT RESPONDENT PAN -ARMPP 4837H APPELLANT BY SMT. SOMOGYAN PAL, SR. DR RESPONDENTS BY SHRI MANISH RAJVAIDYA, AR DATE OF HEARING: 17/12/2015 DATE OF PRONOUNCEMENT: 05/01/2016 ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 2 O R D E R PER BENCH THESE THREE APPEALS OF REVENUE ARE DIRECTED AGAINST THREE SEPARATE ORDERS OF CIT(A)-XI, AHMEDABAD IN APPEAL N O.CIT(A)- XI/472/10-11, DATED 29.11.2011, IN APPEAL NO.CIT(A) -XI/473/10-11, DATED 25.11.2011 AND IN APPEAL NO.CIT(A)-XI/471/10- 11, DATED 30.11.2011 RESPECTIVELY, FOR ASST. YEAR 2008-09. AS SESSMENTS WERE FRAMED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) ON 29.12 .2010. SINCE ALL THESE THREE APPEALS PERTAIN TO THE SAME GROUP OF AS SESSEES AND THE ISSUES INVOLVED IN THESE APPEALS ARE SIMILAR, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.271/AHD/2012 FOR ASST. YEAR 2008-09 FO LLOWING GROUNDS ARE RAISED:- 1. THE LD. CIT(A) IS NOT JUSTIFIED IN FACTS AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF TH E IT RULES, AND IN DELETING, ON THE BASIS OF SUCH ADDITIONAL EV IDENCES, THE ADDITION OF RS.14,74,714/- MADE BY THE ASSESSING OF FICER UNDER SECTION 68 OF THE IT ACT. 2. THE LD. CIT(A) IS NOT JUSTIFIED IN FACTS AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF TH E IT RULES, AND IN DELETING, ON THE BASIS OF SUCH ADDITIONAL EV IDENCES, THE ADDITION OF RS.3,96,372/- MADE BY THE ASSESSING OFF ICER UNDER SECTION 69 OF THE IT ACT. ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 3 3. THE LD. CIT(A) IS NOT JUSTIFIED IN FACTS AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF TH E IT RULES, AND IN DELETING, ON THE BASIS OF SUCH ADDITIONAL EV IDENCES, THE ADDITION OF RS.2,15,000/- MADE BY THE ASSESSING OFF ICER UNDER SECTION 68 OF THE IT ACT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 5. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE REST ORED. 3. IN ITA NO.272/AHD/2012 FOR ASST. YEAR 2008-09 FO LLOWING GROUNDS ARE RAISED:- 1. THE LD. CIT(A) IS NOT JUSTIFIED IN FACTS AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF TH E IT RULES, AND IN DELETING, ON THE BASIS OF SUCH ADDITIONAL EV IDENCES, THE ADDITION OF RS.5,65,000/- MADE BY THE ASSESSING OFF ICER UNDER SECTION 68 OF THE IT ACT. 2. THE LD. CIT(A) IS NOT JUSTIFIED IN FACTS AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF TH E IT RULES, AND IN DELETING, ON THE BASIS OF SUCH ADDITIONAL EV IDENCES, THE ADDITION OF RS.9,00,000/- MADE BY THE ASSESSING OFF ICER UNDER SECTION 68 OF THE IT ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE REST ORED. 4. IN ITA NO.273/AHD/2012 FOR ASST. YEAR 2008-09 FO LLOWING GROUNDS ARE RAISED:- ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 4 1. THE LD. CIT(A) IS NOT JUSTIFIED IN FACTS AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF TH E IT RULES, AND IN DELETING, ON THE BASIS OF SUCH ADDITIONAL EV IDENCES, THE ADDITION OF RS.3,60,000/-, RS.5,00,000/- & RS.4,35, 000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE IT ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE REST ORED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. AFTER CONSIDERING THE FACTS OF THE CASE WE OBSERVE THAT IN BETWEEN THE DATE OF HEARING I.E. 17.12.2015 AND BEF ORE THE DISPOSAL OF THESE APPEALS WE HAVE COME ACROSS A CIRCULAR NO. 21/2015 DATED 10.12.2015 ISSUED BY CBDT IN RELATION TO REVISION O F MONETARY LIMITS TO RS.10 LAKHS, FOR FILING OF APPEALS BY THE INCOME -TAX DEPARTMENT BEFORE THE INCOME-TAX APPELLATE TRIBUNAL. 6. IN ITA NO.271/AHD/2012, THE ASSESSED INCOME OF T HE ASSESSEE IS OF RS.36,01,447/-. THE ADDITION DELETED BY THE C IT(A) IS RS.20,86,086/-. THE TAX EFFECT ON DELETION OF THIS TOTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. 6.1 IN ITA NO.272/AHD/2012, THE ASSESSED INCOME OF THE ASSESSEE IS OF RS.33,98,228/-. THE ADDITION DELETED BY THE C IT(A) IS RS.14,65,000/-. THE TAX EFFECT ON DELETION OF THIS TOTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 5 6.2 IN ITA NO.273/AHD/2012, THE ASSESSED INCOME OF THE ASSESSEE IS OF RS.18,53,958/-. THE ADDITION DELETED BY THE C IT(A) IS RS.12,95,000/-. THE TAX EFFECT ON DELETION OF THIS TOTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. 7. ON GOING THROUGH THE INSTRUCTIONS IN THE ABOVE R EFERRED CBDT CIRCULAR NO.21/2015 DATED 10/12/2015 WE FIND THAT T HESE INSTRUCTIONS HAVE BEEN ISSUED PROHIBITING SUBORDINATE AUTHORITIE S 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 W ITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APP LICABLE ON PENDING APPEALS ALSO. FROM GOING THROUGH THE FACTS OF THE P RESENT APPEALS WE FIND THAT TOTAL TAX EFFECT BY VIRTUE OF CIT(A)S OR DERS AGAINST WHICH REVENUE IS IN APPEALS ARE BELOW RS.10 LAKHS. THE PR ESENT APPEALS DESERVE TO BE DISMISSED BEING TREATED TO BE FILED I N VIOLATION OF CBDT INSTRUCTIONS. THE CASES DO NOT FALL WITHIN THE AMBI T OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVE D THAT SINCE, WHILE HEARING THE APPEALS, SUCH FACTORS WERE NOT CONSIDER ED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT C AME 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 LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICA TION SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABO VE, THE APPEALS OF THE REVENUE ARE DISMISSED. ITA NOS.271 TO 273/AHD/2012 ASST. YEAR 2008-09 6 8. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/01/2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 05/01/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER A SST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 5/1/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 5/1/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 6/1/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: