The ITO, Ward-5(3), Surat V. Smt. Nilamben R. Sopariwala, Surat

ITA 2839/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0751 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 23-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 04-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENASR
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3)

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PROMOD KUMAR, AM & SHRI MAHAVIR PRASAD, JM ./ITA.NO.2839/AHD/2013 ALONG WITH CO NO.320/AHD/2014 ( / ASSTT YEAR : 2007-08) ITO, WARD -5(3), SURAT. VS. SMT. NILAMBEN R. SOPARIWALA, 9/1936, KABUTARKHANA, LIMDA CHOWK, SURAT. PAN AHHPS 3209F (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI RAJESH MEENA,SR. DR / RESPONDENT BY: NONE / DATE OF HEARING 23/08/2016 /DATE OF PRONOUNCEMENT 26/08/2016 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER THIS APPEAL OF REVENUE AND CO BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD.CIT(A)-1, SURAT, DATED 05/09/20133 PASSED AGAINST THE ORDER U/S 143(3) R.W.S. 147 OF THE IT ACT, 1961(IN SHOR T THE ACT) DT.08.03.2013 FRAMED BY ITO, WARD-5(3), SURAT, 2. GRIEVANCES OF THE REVENUE, IN THIS APPEAL ARE AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.23,59,767/ - ON ACCOUNT OF DIFFERENCES IT(SS)A NO.2839/AHD/2013 ALONG WITH CO320/AHD/2014 ASST. YEAR 2007-08 2 FOUND IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND T HOSE OF HER SISTER CONCERNS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A), SURAT HAS ERRED IN NOT APPRECIATING THAT THE ASSESS EE FAILED TO RECONCILE THE DIFFERENCES DURING THE ASSESSMENT OR APPELLATE PROC EEDINGS AND TO EXPLAIN WHY AND WHEN THE DIFFERENCES IN THE ACCOUNTS HAD AR ISEN AND ALSO DID NOT BRING ANY DOCUMENTARY EVIDENCE ON RECORD TO ESTABLI SH WHEN THE DIFFERENCES FIRST APPEARED. HENCE, THE AO'S ACTION IN BRINGING THE DIFFERENCES TO TAX IN A.Y. 2007-08, THE YEAR IN WHICH IT WAS DISCOVERED T HAT UNRECONCILED DIFFERENCES EXISTED SHOULD HAVE BEEN UPHELD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND LAW, THE LD.CIT(A) 7 SURAT HAS ERRED IN NOT APPRECIATING THAT THE SISTER CONCERNS HAVE OFFERED THE INCOME ON ACCOUNT OF DIFFERENCES IN CLOSING BALANCE IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE WHICH CONFIRMS THE AO'S FINDINGS TH AT THESE DIFFERENCES WERE BOGUS AND HENCE OUGHT TO HAVE BEEN TAXED IN ASSESSE E'S HANDS IN A.Y. 2007-08. 4. THE LD. CIT(A) HAS FAILED TO GIVE ANY REASON AS TO HOW THE CIRCUMSTANCES WERE DIFFERENT BETWEEN A.Y.2012-13 AND A.Y. 2007-08 AND WHY IT WAS NOT CORRECT TO TAX THE SAME IN THE ASSESSEE'S HANDS IN A.Y. 2007-08 BUT WAS ACCEPTABLE FOR THE SISTER CONCERNS TO OFFER IT FOR TAXATION IN A.Y. 2012-13. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A), SURAT OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSI NG OFFICER. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.CIT(A), SURAT MAY B E SET-ASIDE AND THAT OF THE ASSESSING OFFICER'S BE RESTORED. I/// 3. THIS APPEAL WAS PRESENTED ON 04/12/2013. ON 10. 12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBI TING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUN AL 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 RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRU CTIONS ARE APPLICABLE ON PENDING APPEAL ALSO. THE TAX EFFECT ON DELETION OF THE TOTAL ADDITION IN THIS APPEAL WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS P ROVIDED IN THE INSTRUCTIONS. IT(SS)A NO.2839/AHD/2013 ALONG WITH CO320/AHD/2014 ASST. YEAR 2007-08 3 IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING TH E APPEAL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE, IN CASE, ON RE-VERIFICAT ION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR T HEY FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DE PARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN LIMITATION PROVIDED IN LAW. IN VIEW O F THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 4. SINCE THE APPEAL OF REVENUE HAS BEEN DISMISSED, THE CROSS OBJECTION HAS BECOME INFRACTUOUS AND HENCE DISMISSED AS INFRA CTUOUS. 5. IN THE RESULT, APPEAL OF THE REVENUE AND THE CO OF ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 26 AUGUST, 2016 AT AHMEDABAD. SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER SD/ - (MAHAVIR PRASAD) JUDICIAL MEMBER AHMEDABAD; DATED, 26/08/2016 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. !' # / CONCERNED CIT 4. # ( ) / THE CIT(A), AHMEDABAD 5. $% & ''!' , !' , () / DR, ITAT, AHMEDABAD 6. & *+ , / GUARD FILE. ' # / BY ORDER, $ / # %& ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD IT(SS)A NO.2839/AHD/2013 ALONG WITH CO320/AHD/2014 ASST. YEAR 2007-08 4 1. DATE OF DICTATION .. : 23/8/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 23/8/2016 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 26/8 /16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER..