The ITO, Ward-3(1), Baroda V. M/s. D.D. Construction Co., Baroda

ITA 2710/AHD/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0786 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 10-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 03-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2710 AND 2711/AHD/2011 / ASSTT. YEAR: 2007-2008 AND 2008-2009 ITO, WARD-3(1) BARODA. VS M/S.D.D. CONSTRUCTION TALJA MANGALS KHADKI, AT. PADRA BARODA 391 440. PAN : AADFD 5422 C ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI SATISH SOLANKI, SR.DR ASSESSEE BY : SHRI MANISH J. SHAH, AR / DATE OF HEARING : 10/08/2016 / DATE OF PRONOUNCEMENT: 11/08/2016 $%/ O R D E R PRESENT TWO APPEALS OF THE REVENUE ARE DIRECTED AGA INST THE ORDERS OF THE LD.CIT(A)-II, BARODA OF EVEN DATED 1.8.2011 FOR THE ASSTT.YEAR 2007-08 AND 2008-09. 2. IN BOTH THE APPEALS, COMMON ISSUE RAISED BY THE REVENUE IS THAT LD.CIT(A) ERRED IN ALLOWING DEDUCTION UNDER SECTION 80IB(10) R.W.S. 80IB(1) TO THE ASSESSEE ON PROFIT DERIVED FROM SALE OF UNTU ILISED FSI. 3. THE LD.COUNSEL FOR THE ASSESSEE, AT THE OUTSET, CONTENDED THAT THE APPEALS FILED BY THE REVENUE ARE NOT MAINTAINABLE IN VIEW O F RECENT CBDT CIRCULAR NO.21/2015 DATED 10.12.2015 RESTRICTING FILING OF A PPEAL BY THE REVENUE BEFORE THE TRIBUNAL, WHERE TAX EFFECT IS BELOW RS.1 0 LAKHS, AND THAT THE TAX EFFECT ON THE IMPUGNED DEDUCTION IS MUCH BELOW PRES CRIBED LIMIT. THE LD.DR, COULD NOT CONTROVERT TO THIS CONTENTIONS OF THE ASS ESSEE AND DISPUTE APPLICATION ITA NO.2710 AND 2711/AHD/2011 2 OF THE INSTRUCTION OF THE CBDT PROHIBITING FILING O F THE APPEAL BY THE REVENUE, WHERE TAX EFFECT IS BELOW RS.10 LAKHS. 4. I FIND THAT THESE TWO APPEALS WERE PRESENTED ON 3.11.2011. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFEC T 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 INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRE SENT CASE, THE DEDUCTION CONTESTED BY THE REVENUE IN THE PRESENT APPEALS ARE RS.12,66,211/- IN THE ASSTT.YEAR 2007-08 AND RS.30,15,474/- AND TAX EFFEC T ON RESPECTIVE AMOUNTS IS LESS THAN RS.10 LAKHS. THEREFORE, THE PRESENT A PPEALS DESERVE TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. FURTHER, THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, W HILE HEARING THE APPEALS, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON 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 FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEALS OF THE REVENUE ARE DISMISSED . 5. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE COURT ON 11 TH AUGUST, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 11/08/2016