The ACIT, Kheda Circle, Nadiad V. Shri Rajesh Kantilal Patel, Kheda

ITA 2738/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1059 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Audit objection; Wrong claim; Tax effect; Revised return
• Section: 271(1)(c); 27

Judgement Text

ITA NO. 2738/AHD/2017 DCIT VS RAJESH KANTILAL PATEL ASSESSMENT YEAR : 2013-14 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VP AND MS. MADHUMITA ROY, JM] ITA NO. 2738/AHD/2017 ASSESSMENT YEAR: 2013-14 THE ASSISTANT COMMISSIONER OF INCOME-TAX ....... ...........APPELLANT KHEDA CIRCLE, NADIAD VS. RAJESH KANTILAL PATEL ............................RESPONDENT SUTARIA POLE, KANTHARIA CHAKLA, NADIAD, DIST- KHEDA-387 001 [PAN : ADFPP 0883 J] APPEARANCES BY: MUDIT NAGPAL, FOR THE APPELLANT NONE, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 13.03.2019 DATE OF PRONOUNCING THE ORDER : 14.03.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT : 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 13 TH SEPTEMBER 2017 PASSED BY THE BY THE CIT(A)-2, VADO DARA IN THE MATTER OF PENALTY UNDER SECTION 271(1)(C) OF TH E ACT FOR THE ASSESSMENT YEAR 2013-14. 2. THE GRIEVANCES RAISED BY THE ASSESSING OFFICER A RE AS FOLLOWS:- 1.1 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, AND IN LAW, THE LD. CIT(A) ERRED IN REDUCING THE PENALTY IMPOSED U/S 27 1(1)(C) FROM 300% TO 100% OF THE TAX SOUGHT TO BE EVADED, WITHOUT CONSID ERING THE FALSE CLAIM MADE, AND THE CONTUMACIOUS CONDUCT OF THE ASSESSEE, EVIDENT FROM THE FACTS OF THE CASE. 1.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, AND IN LAW, THE LD. CIT(A) ERRED IN REDUCING THE PENALTY ERRONEOUSLY OB SERVING THAT THE ASSESSEE HAD FILED A REVISED RETURN WHEREAS THE ASSESSEE HAD ACTUALLY FILED ONLY A REVISED COMPUTATION AND THAT TOO, ONLY AFTER THE FA LSE CLAIM WAS DETECTED BY THE ASSESSING OFFICER, AND AFTER BEING CONFRONTED B Y THE AO WITH THE FALSE CLAIM, AND AFTER ISSUE OF A SHOW CAUSE NOTICE. 3. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE; HOWEVER, SINCE THE ISSUE IN QUESTION IS COVERED BY CBDT CIRCULAR NO.3 OF 2018 DATED 11.07.2018, THIS APPEAL IS DECIDED EX-PARTE QUA THE ASSESSEE, AFTER HEARING ITA NO. 2738/AHD/2017 DCIT VS RAJESH KANTILAL PATEL ASSESSMENT YEAR : 2013-14 PAGE 2 OF 2 THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSIN G THE MATERIAL AVAILABLE ON RECORD. 4. HAVING HEARD THE LEARNED DEPARTMENTAL REPRESENTA TIVE AND HAVING PERUSED THE MATERIAL ON RECORD, WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF THE CBDT CIRCULAR NO. 3/201 8 IN F.NO.279/MISC. 142/2007- ITJ (PT) DATED 11 TH JULY, 2018, VIDE WHICH IT HAS BEEN DECIDED BY THE BOARD THAT NO DEPARTMENTAL APPEALS SHOULD BE FILED BEFORE THE TRI BUNAL IF THE TAX EFFECT BY VIRTUE OF THE COMMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS. 20 LACS. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (10) OF THE INSTR UCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLIC ABLE, WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT/RULE IS UNDER CHALLENGE OR WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPA RTMENT OR WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS ETC. WE FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX EFFECT IS LESS THAN RS.20 LACS. THEREFORE, THE PRESENT APPEAL IS NOT MAINTA INABLE AND HENCE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED IN LIMINE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 14 TH MARCH, 2019. SD/- SD/- MS. MADHUMITA ROY PRA MOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, THE 14 TH DAY OF MARCH, 2019 *BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ....13.03.2019.. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 13.03.2019......... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: ...14.03.2019.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT:.... 14.03.2019. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : ... 14.03.2019................... 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 8. DATE OF DESPATCH OF THE ORDER: ......