The ITO, Ward-8(4), Ahmedabad V. M/s. Vepar Pvt.Ltd., Ahmedabad

ITA 28/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9234 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Keywords: Depreciation; Retrospective amendment; Tax effect

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.28/AHD/2012 WITH CO NO.45/AHD/2012 / ASSTT. YEAR: 2008-2009 ITO, WARD-8(4) AHMEDABAD. VS VEPAR PVT. LTD. KAIVANNA 9 TH FLOOR, PANCHVATI ELLISBRIDGE, AHMEDABAD. PAN : AAACC 3821 F ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI NARENDRA SINGH, SR.DR ASSESSEE BY : SHRI P.M.MEHTA WITH SHRI G.M. THAKORE, AR / DATE OF HEARING : 08/03/2016 / DATE OF PRONOUNCEMENT: 08/03/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LD.COMMISSIONER INCOME-TAX (APPEALS)-XIV, AHMEDABAD DATED 18.10.2011 PASSED FOR THE ASSTT.YEAR 2008-09. AFTER ISSUE OF NOTICE ON THE APPEAL OF THE REVENUE, THE ASSESSEE HAS ALSO FILED CROSS-OBJECTIO N NO.45/AHD/2012. FOR THE ITA NO.28/AHD/2014 WITH CO 2 SAKE OF CONVENIENCE, BOTH THE APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE ARE DISPOSED OF BY THIS COMMON ORDER. 2. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT TH E LD.CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF PART DEPRECIATION ON F ACTORY BUILDING OF RS.12,63,201 AND DISALLOWANCE OF FOREIGN TRAVEL AMO UNTING TO RS.17,69,998/-. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE FILED A CHART SHOWING THE TAX EFFECT ON THE ALLEGED DISALLOWANCE MADE BY THE REVENUE AUTHORITIES. IT READS AS UNDER: PARTICULARS AMOUNT (RS.) DISALLOWANCE ON PART DEPRECIATION ON FACTORY BUILDING 12,63,201/- DISALLOWANCE OF FOREIGN TRAVEL EXPENSES 17,69,998/- TOTAL 30,33,199 STATEMENT OF TAX TAX AS PER NORMAL PROVISIONS 9,09,960 ADD: CESS (3%) 27,299 TOTAL EFFECT ON ADDITION 9,37,258/- THE LD.COUNSEL FOR ASSESSEE SUBMITTED THAT ACCORDI NG TO THE ABOVE CALCULATION, THE TAX EFFECT ON THE APPEAL FILED BY THE REVENUE IS BELOW RS.10 LAKHS, AND THEREFORE, THE APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED AT THE THRESHOLD IN VIEW OF THE RECENT CBDT INSTRUCTIONS R ESTRICTING THE FILING OF APPEAL BEFORE THE TRIBUNAL, WHERE TAX EFFECT IS BEL OW RS.10.00 LAKHS. ITA NO.28/AHD/2014 WITH CO 3 4. THE LD.DR, COULD NOT CONTROVERT THE ABOVE CALCUL ATIONS SHEET MADE BY THE ASSESSEE AND THE APPLICATION OF THE CBDT CIRCUL AR CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE. HOWEVER, THE LD.DR SUBMI TTED THAT SINCE THE APPEAL OF THE REVENUE WAS FILED WAY BACK IN 4.1.2012, SUCH FACTORS VIZ. TAX IMPLICATION COULD NOT HAVE VERIFIED AT THE END OF T HE AO, AND THEREFORE, THE DEPARTMENT BE ALLOWED TO VERIFY THE SAME. 5. ON DUE CONSIDERATION OF THE SUBMISSIONS OF THE B OTH THE PARTIES, WE FIND THAT THE APPEAL WAS PRESENTED ON 4.1.2012. ON 10.1 2.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST T HE 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 RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, ACCORDING TO THE TAX CALCULATI ON SHEET SUBMITTED BY THE ASSESSEE, THE TAX EFFECT ON DELETION OF THIS TOTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS, AND THEREFORE, THE PRESENT APPEAL OF T HE REVENUE DESERVES 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 APPEAL, 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 APPEAL OF THE REVENUE IS DISMISSED. ITA NO.28/AHD/2014 WITH CO 4 6. THE LD.COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THE CROSS-OBJECTION FILED BY THE ASSESSEE FOR ADJUDICATION, HENCE, THE SAME I S ALSO DISMISSED FOR WANT OF PROSECUTION. 7. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE AN D THE CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 8 TH MARCH, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER