The ITO, Ward-2(4), Baroda V. M/s. R.G. Gurjar, Baroda

ITA 2949/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9373 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 18-01-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 12-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S CHAUDHARY
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3); 154

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE S/SHRI S.S. GODARA, JM, & MANISH BORAD, AM ./ITA.NO.2949/AHD/2013 ALONG WITH C.O.NO.78/AHD/2014 ( / ASSTT YEAR : 2005-06) ITO, WARD-2(4), BARODA VS. M/S. R.G. GURJAR, C-25, NAMRATA TENEMENTS NEAR-PANCHVATI JAKAT NAKA REFINERY ROAD,GORWA, BARODA. PAN : AAEFR1203L (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI P.S. CHAUDHARY, SR.DR / RESPONDENT BY: NONE / DATE OF HEARING 18/01/2017 /DATE OF PRONOUNCEMENT 20/01/2017 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE APPEAL BY REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER INCOME-TAX (APPEALS)-II, BARODA, DATED 05/09/2013 IN APPEAL NO .CAB/II-147/13-14, PASSED FOR THE ASSTT.YEAR 2005-06. ASSESSMENT WAS F RAMED U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) ON 17.1 2.2010 BY INCOME TAX OFFICER, WARD 2(4) BARODA. IT(SS)A.NO.2949/AHD/2013 & C.O.NO.78/AHD/2015 ASSESSMENT YEAR 2005-06 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 ID.CIT (APPEALS) ERRED IN LAW AS WELL AS IN FACTS BY ALLOWING THE APPEAL OF THE ASSESSEE WITHOUT CONSIDERING THE FACT THAT THE RECTIFICATION APPLICATION U/ S 154 WAS FILED AFTER LAPSE OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH ORDER SOUGHT TO BE AMENDED WAS PASSED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THAT RATIO OF HON'BLE HIGH COURT'S DECISION CAN BE APPLIED ONLY TO PENDING MATTERS AND APPLYING THE RATIO TO SETTLED CASES WOULD ONLY CREATE JUDICIAL CHAOS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASES AND IN LAW THE LD.CIT(A) HAS ERRED IN LAW AS WELL AS IN FACTS BY ALLOWING THE APPEAL OF THE ASSESSEE WITH RESPECT TO DEDUCTION U/S 40(A)(IA)GIVING EFFECT RETR OSPECTIVELY THOUGH THE AMENDMENT CAME INTO EFFECT FROM 01.04.2010 ONLY AND THE SAME WAS NOT APPLICABLE TO THE A,Y.2005-06. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. RELIEF CLAIMED IN APPEAL IT IS PRAYED THAT THE ORDER OF THE CIT (APPEALS) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THIS APPEAL WAS PRESENTED ON 18/01/2017. 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 INSTRUC TIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEAL ALSO. THE TAX EFFE CT ON DELETION OF THE TOTAL ADDITION IN THIS APPEAL IS 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 THEY FALL WITHIN THE AMBIT OF EXC EPTION PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT 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 OF THE ABOVE, T HE APPEAL OF THE REVENUE IS DISMISSED. IT(SS)A.NO.2949/AHD/2013 & C.O.NO.78/AHD/2015 ASSESSMENT YEAR 2005-06 4. CROSS OBJECTION NO.78/AHD/2015 FILED BY ASSESSEE IS SUPPORTING THE ORDER OF CIT(A). AS WE HAVE ALREADY DISMISSED T HE REVENUES APPEAL ON ACCOUNT OF LOW TAX EFFECT, CROSS OBJECTION RAISE D BY ASSESSEE BECOME INFRACTUOUS AND DESERVED TO BE DISMISSED. 5. IN THE RESULT, THE APPEAL OF REVENUE AND THE CRO SS OBJECTION OF THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 20 TH JANUARY, 2017 AT AHMEDABAD. SD/- (S.S. GODARA) JUDICIAL MEMBER TRUE COPY SD/- (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 20/01/2017 ! / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $'# / THE RESPONDENT. 3. %&& ' ( / CONCERNED CIT 4. ' ( ( ) / THE CIT(A)- 5. )* , , +,- /DR,ITAT, RAJKOT 6. *. /0 / GUARD FILE. ' % / BY ORDER, % &+ (ASSTT.REGISTRAR) AHMEDABAD