The ITO, Ward-1(2)(4), Surat V. M/s. Sagar Texoline, Surat

ITA 3549/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9486 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 18-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Assessee Lawyers: M K PATEL
• Keywords: Depreciation; Additional depreciation; Retrospective amendment; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER ./ ITA.NO.3549/AHD/2015 / ASSTT. YEAR: 2011-2012 ITO, WARD-1(2)(4) SURAT. VS M/S. SAGAR TEXOLINE 94, POPDA, NR. HOJIWALA INDUSTRIAL ESTATE GATE NO.2, ROAD NO.10, SURAT. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI ALBINUS TIRKEY, SR.DR ASSESSEE BY : SHRI M.K. PATEL , AR / DATE OF HEARING : 24/02/2016 / DATE OF PRONOUNCEMENT: 24/02/2016 $%/ O R D E R THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAIN ST THE ORDER OF THE LD.CIT(A)-II, SURAT DATED 7.9.2015 PASSED FOR THE A SSESSMENT YEAR 2011-12. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) IS ERRED IN DELETING THE PENALTY OF RS.7,23,585/- UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT WHICH WAS LEVIED CONSEQUENT UPON FURNISHING OF INACCURATE CLAIM OF ADDITIONAL DEPRECIATION ON OLD MACHINE. 3. THE LD.COUNSEL FOR THE ASSESSEE, AT THE OUTSET, CONTENDED THAT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE, AS THE SA ME IS FILED BY THE REVENUE IN VIOLATION OF CBDT CIRCULAR NO.21/2015 DATED 10.1 2.2015. BY VIRTUE OF THIS INSTRUCTION, THE BOARD HAS RESTRAINED THE DEPARTMEN T NOT TO FILE APPEAL BEFORE ITA NO.3549/AHD/2015 2 THE TRIBUNAL WHERE THE TAX EFFECT IS BELOW RS.10 LA KHS. LD. COUNSEL FOR THE ASSESSEE HAS FILED A COPY OF ABOVE CBDT CIRCULAR AN D THE SAME IS PLACED ON RECORD. HE SUBMITTED THAT THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT IMPOSED BY THE AO ON THE ALLEGED ADDITION OF RS.23, 41,704/-. THIS PENALTY HAS BEEN DELETED BY THE LD.CIT(A). EVEN OTHERWISE, TAX EFFECT ON THE ALLEGED ADDITION IS LESS THAN RS.10,00,000/-, AND THEREFOR E, APPEAL OF THE REVENUE LIABLE TO BE DISMISSED IN LIMINE . 4. WHEN I CONFRONTED THIS TO THE LD.DR, HE IS UNABL E TO REBUT THE SUBMISSIONS OF THE LD.AR AND THE CIRCULAR ISSUED BY THE CBDT RESTRICTING THE FILING OF APPEAL BEFORE THE TRIBUNAL WHERE TAX EFFE CT IS BELOW RS.10 LAKHS. 5. I FIND THAT THE ASSESSEE HAS FILED ITS APPEAL ON 18.12.2015. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS REVENUE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFEC T 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 INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRE SENT CASE, THE TOTAL INCOME COMPUTED BY THE AO IS RS.(-)77,00,700/- AND THE ADD ITION ON WHICH THE IMPUGNED PENALTY HAS BEEN IMPOSED IS RS.23,41,704/- , AND THEREFORE, THE TAX EFFECT WOULD BE LESS THAN RS.10 LAKHS. THUS, THE P RESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPE AL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIF ICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR I T FALLS 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 ITA NO.3549/AHD/2015 3 FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 24 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- ( GEORGE GEORGE K. ) JUDICIAL MEMBER