The ITO, Ward-3(2)(10), Ahmedabad V. Shri Niteshkumar Arvindbhai Thakkar, Ahmedabad

ITA 3395/AHD/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9699 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 16-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAMLESH MAKWARA
• Keywords: Transactions in derivatives; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ./ I.T.A. NO. 3395/AHD/2016 ( / ASSESSMENT YEAR : 2011-12) ITO. WARD 3(2)(10), AHMEDABAD. / VS. SHRI NITESHKUMAR ARVINDBHAI THAKKAR, BALARAM TRADING CO., SURVEY NO.1993/2 THE LAXMI COTTON GINNING FACTORY BAGODARA ROAD, MAJPUR ROAD, AT: DHOLKA, AHMEDABAD. ./ ./ PAN/GIR NO. : ADHPT 0858 M ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KAMLESH MAKWARA, SR. D.R. / RESPONDENT BY : --NONE-- / DATE OF HEARING 10/09/2018 / DATE OF PRONOUNCEMENT 18/09/2018 !' / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEAL) -3, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-3/WD.3(2)(3 )/505/14-15 DATED 04-10-2016 ARISING IN THE MATTER OF ASSESSMENT ORDE R PASSED UNDER - 2 - S.143(3) OF THE INCOME TAX ACT, 1961(HERE-IN-AFTER REFERRED TO AS 'THE ACT') DATED 24.03.2014 RELEVANT TO ASSESSMENT YEAR (AY) 2011-12. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE AR E AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE DISALLOWANCE OF RS.39,38,072/- MADE ON ACCOUNT OF F &O LOSS. 1.1 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THE ASSESSEE FAILED TO EXPLAIN THE INFORMATION RECEIVED FROM NSE THAT THE ASSESSEE HAD NOT CARRIED OUT ANY F&O B USINESS DURING THE YEAR. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER TO THE ABOVE EXTENT. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A) MAY BE SET-ASIDE AND THAT OF THE ASS ESSING OFFICER BE RESTORED TO THE ABOVE EXTENT. 3. AT THE TIME OF THE HEARING, WE OBSERVE THAT THE TAX EFFECT IN THE APPEAL FILED BY THE REVENUE IS LESS THAN RS. 20 LAC S. AS PER THE CIRCULAR NO. 3 OF 2018 DATED 11/07/2018 ISSUED BY CBDT RECEN TLY ALL PENDING APPEALS FILED BY REVENUE ARE LIABLE TO BE DISMISSED / WITHDRAWN/ NOT PRESSED TO REDUCE THE LITIGATION WHERE THE TAX EFFE CT DOES NOT EXCEED THE PRESCRIBED MONETARY LIMIT, I.E., RS.20 LACS. THE R ELEVANT EXTRACT OF THE CIRCULAR IS REPRODUCED BELOW: 2. IN SUPERSESSION OF THE ABOVE CIRCULAR, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MER ITS BEFORE INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND S LPS/ APPEALS BEFORE SUPREME COURT KEEPING IN VIEW THE MO NETARY LIMITS AND CONDITIONS SPECIFIED BELOW. - 3 - 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVE N HEREUNDER: S. NO. APPEALS/ SLPS IN INCOME-TAX MATTERS MONETARY LIMIT (RS.) 1. BEFORE APPELLATE TRIBUNAL 20,00,000 2. BEFORE HIGH COURT 50,00,000 3. BEFORE SUPREME COURT 1,00,00,000 THE MONETARY LIMIT FOR FILING THE APPEALS BY THE RE VENUE BEFORE THE TRIBUNAL HAS BEEN INCREASED TO RS. 20 LACS. IT IS A LSO CLARIFIED IN THE SAID CIRCULAR THAT THE SAID MONETARY LIMIT IS APPLICABLE RETROSPECTIVELY EVEN TO THE APPEALS PENDING BEFORE THE TRIBUNAL. THE CBDT H AS ALSO INSTRUCTED THAT SUCH PENDING APPEALS BELOW THIS SPECIFIED TAX LIMIT OF RS.20 LACS MAY BE WITHDRAWN / NOT PRESSED . IN THE CASE ON HAND, IT WAS NOTICED THAT THE TAX EF FECT ON THE DISPUTED ISSUE RAISED BY THE REVENUE IS CLAIMED TO BE LESS R S.20 LACS. THEREFORE APPEAL OF THE REVENUE IS REQUIRED TO BE DISMISSED IN LIMINE IN TERMS OF THE ABOVE CIRCULAR. 4. THE LD. DR FOR THE REVENUE FAIRLY AGREED ON THE APPLICABILITY OF THE CBDT CIRCULAR NO. 3 OF 2018. ACCORDINGLY, THE A PPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. HOWEVER, THE REVENUE IS ON THE LIBERTY TO MOVE THE MISCELLANEOUS APPLICATION T O RECALL THE ORDER IF THE TAX EFFECT EXCEEDS THE THRESHOLD LIMIT OR THE CASE OF THE REVENUE FALLS IN - 4 - ANY OF THE EXCEPTION PROVIDED IN THE AFORESAID CBDT CIRCULAR IN ANY MANNER. THE MA SHALL BE FILED WITHIN THE PRESCRIBED TIME. HENCE THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 18/09/2018 SD/- SD/- (RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 18/09/2018 PRITI YADAV, SR.PS !' #$% &% /COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. '() * / CONCERNED CIT 4. * ( ) / THE CIT(A) 5. %+ , ##() , () / DR, ITAT, 6. , -. / / GUARD FILE. !' / BY ORDER , TRUE COPY 0 / 1 (DY./ASSTT.REGISTRAR) () , 12! ' ! / ITAT, AHMEDABAD