The ACIT, Central Circle-1(3), Ahmedabad V. Shri Parag P.Jhaveri, Ahmedabad

ITA 2904/AHD/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2387 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 28-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAMES KUREIN
• Assessee Lawyers: MRS URVASHI SHODHAN
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE S/SHRI RAJPAL YADAVJM, AND MANISH BORAD, AM ./ITA.NO.2904/AHD/2012_ ( / ASSTT YEAR : 2009-10) ACIT, CEN. CIRCLE-1(3), AHMEDABAD. VS. SHRI PARAG P. JHAVERI A/3, EMBASSY APARTMENTS, DR. V.S. ROAD, AMBAWADI, AHMEDABAD. PAN AAKPJ 5052F (APPELLANT) (RESPONDENT) / APPELLANT BY: MR. JAMES KUREIN, SR.DR / RESPONDENT BY: MRS URVASHI SHODHAN, AR / DATE OF HEARING 08/02/2016 /DATE OF PRONOUNCEMENT 09-02-2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD.COMMISSIONER INCOME-TAX (APPEALS)-I, AHMEDABAD D ATED 11.10.2012 PASSED FOR THE ASSTT.YEAR 2009-10. 2. THE GRIEVANCES OF THE REVENUE, AS PER GROUNDS OF APPEAL ARE AS FOLLOWS :- ITA.NO.2904/AHD/2012 - 2 1) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO TREAT THE BUSINESS LOSS OF RS. 19,61,766/- AS LONG TERM CAPITAL LOSS. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . CIT(A)-XIV, BE SET ASIDE AND THAT OF THE ORDER OF THE AO BE RESTORED T O THE ABOVE EXTENT. 3. THIS APPEAL WAS PRESENTED ON 28/12/2012. ON 10. 12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PR OHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRU CTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. THE TAX EF FECT ON DELETION OF THIS TOTAL ADDITION 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 AMB IT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVE D THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCE PTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE ITA.NO.2904/AHD/2012 - 3 TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, TH E APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 9 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 09/02/2016 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , ,012 /DR,ITAT, AHMEDABAD, 6. .3 45 / GUARD FILE. ) ' / BY ORDER, ' (0 (ASSTT.REGISTRAR) ITAT, AHMEDABAD ITA.NO.2904/AHD/2012 - 4 1. DATE OF DICTATION .. : 8/2/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 8/2/2016 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 DICTATING MEMBER FO R 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 9 /2/16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNAT URE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER