The ITO, Ward-4(4), Ahmedabad V. Profex Resources Ltd., (Earlier known as M.G. Funfoods Ltd.,), Ahmedabad

ITA 2931/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9917 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 23-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 11-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMAL I MEHTA
• Assessee Lawyers: ABHIMANYU SINGH BHATI
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2931/AHD/2013 / ASSESSMENT YEAR : 2008-09 THE INCOME-TAX OFFICER, WARD-4(4), AHMEDABAD VS PROFEX RESOURCES LTD, (EARLIER KNOWN AS M.G. FUNFOODS LTD), 3B, JAYAVIJAY SOCIETY, PALIYADINAGAR CHAR RASTA, OPP. GARDEN, NARANPURA, AHMEDABAD PAN : AABCM 0498 C / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI VIMAL I. MEHTA, SR DR ASSESSEE BY : SHRI ABHIMANYU SINGH BHATI, AR / DATE OF HEARING : 23/11/2016 / DATE OF PRONOUNCEMENT: 28/11/2016 / O R D E R THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-III, AHMEDABAD DATED 20.09.2013 FOR AY 2008-2009. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN A LIMIT BY CONDONING 223 DAYS DELAY; 2. THE LD. CIT(A) OUGHT TO HAVE DISMISSED THE APP EAL IN LIMINE CONSIDERING THE FACT THAT: (I) THE ASSESSMENT ORDER WAS PASSED ON 30.11.2010 AND WAS DULY SERVED ON THE ASSESSEE BY RPAD ON 16/12/2010 ALONG WITH DEMAN D NOTICE FOR RS.12,67,904/- AND NOTICE U/S. 274 RWS 271(1)(C) DT . 30/11/2010; (II) THEREFORE, APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 14.2.2011; (III)THE APPEAL CAME TO BE FILED ONLY ON 29.8.2011, AFTER THE RECEIPT OF PENALTY ORDER U/S. 271(1)(C) ON 27/5/2011; (IV)IN THE MEANWHILE, SHOW CAUSE NOTICES DT. 8/2/20 11 & 9/5/2011 FOR PENALTY U/S. 271(1)(C) WERE ALSO DULY SERVED ON THE ASSESSEE 15/2/2011 & SMC-ITA NO. 2931/AHD/2013 ITO VS. PROFEX RESOURCES LTD AY : 2008-09 2 10/5/2011 RESPECTIVELY, TO WHICH ALSO ASSESSEE DID NOT CARE TO MAKE ANY COMPLIANCE; (V) IT IS ONLY WHEN THE ASSESSEE RECEIVED PENALTY ORDER ON 27/5/2011, IN WHICH IT WAS CATEGORICALLY MENTIONED BY THE A.O. TH AT AGAINST ORDER U/S. 143(3), NO APPEAL HAS BEEN FILED BY THE ASSESSEE, T HE ASSESSEE ROSE TO FILE APPEAL AGAINST THE QUANTUM ADDITIONS I.E. AGAINST O RDER U/S. 143(3), WHICH IS FAR BEYOND THE TIME LIMIT. THE TIME GAP BE TWEEN THE PENALTY ORDERS AND FILING OF APPEAL AGAINST ORDER U/S. 143( 3) ALSO REMAINS UNEXPLAINED; (VI) THUS, THE NON-COMPLIANT ATTITUDE OF THE ASSESS EE TO NOTICES ISSUED BY THE DEPARTMENT SHOULD HAVE BEEN TAKEN INTO CONSIDERATIO N BY THE LD. CIT(A) AND , THE APPEAL FILED BY THE ASSESSEE LATE BY 226 DAYS OUGHT NOT HAVE BEEN ADMITTED; (VII)IT IS ONLY WHEN THE ASSESSEE REALIZED THE IMPL ICATION OF PENALTY AND PROSECUTION AND AS AN AFTERTHOUGHT THE ASSESSEE SOU GHT TO EXPLAIN THE REASONS FOR FAILURE ON ITS PART ON THE AUTHORIZED R EPRESENTATIVE OF THE ASSESSEE. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCO UNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12 .2015. HE HAS ALSO SUBMITTED THAT IN THE PRESENT CASE THE TAX EFFECT I S RS.9,80,280/- WHICH IS BELOW THE PRESCRIBED LIMIT OF RS.10 LACS AND HE HAS PLACED ON RECORD THE WORKING FOR THE SAME. THE LD. DEPARTMENTAL REPRESE NTATIVE FAIRLY ADMITTED THAT THE TAX EFFECT IS LESS THAN THE LIMIT PRESCRIB ED BY THE AFORESAID CBDT CIRCULAR. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. I FIND THAT PRIMA-FACIE THIS APPEAL OF T HE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 I N F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WH ICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE CO MMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS. 10 LACS, THEN THAT O RDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREI N IT HAS BEEN PROVIDED SMC-ITA NO. 2931/AHD/2013 ITO VS. PROFEX RESOURCES LTD AY : 2008-09 3 THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCLOSED F OREIGN ASSETS/BANK ACCOUNTS, ETC. I FIND THAT THE PRESENT CASE DOES N OT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS.10 LACS. THERE FORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 28 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 28/11/2016 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD