The DCIT, Circle-1(2), Baroda V. M/s. Niyati Construction Co., Baroda

ITA 3559/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2727 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 30-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: M K PATEL
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER THE DCIT , WARD - 1(2 ) , VADODARA (APPELLANT) VS M/S. NIYATI CONSTRUCTION CO., E - 301 & E - 307, KALPVRUKSH COMPLEX, NEAR T.B. HOSPITAL, GOTRI ROAD, BARODA PAN: AACFN0411E (RESPONDENT) REVENUE BY : S H RI LALIT P. JAIN , SR. D . R. ASSESSEE BY: SHRI M.K. PATEL , A.R. DATE OF HEARING : 06 - 08 - 2 018 DATE OF PRONOUNCEMENT : 13 - 08 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCO UNTANT MEMBER : - THIS REVENUE S APPEAL FOR A. Y. 2010 - 11 , ARI SES FROM ORDER OF THE CIT(A) - 5, VADODARA DATED 08 - 09 - 2 016 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 263 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2 . AT THE OUTSET, AFTER GOING THROUG H THE GROUNDS OF APPEAL AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW, A QUERY WAS RAISED BY THE BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIRCULAR NO.3/2018 DATED 11.7.2018 RESTRICTI NG THE FILLING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKHS, THE LD. DR DID I T A NO . 3559 / A HD/20 16 A SS ESSMENT YEAR 2010 - 11 I.T.A NO. 3559 /AHD/20 16 A.Y. 2010 - 11 PAGE NO DC IT VS. M/S. NIYATI CONSTRUCTION CO. 2 NOT DISPUTE THE SAME AND SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACCORDANCE WITH LAW. 3 . WE FIND THAT THE APPEAL O F THE REV ENUE IS PRESENTED O N 30 .1 2.2016 . ON 11.7.2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007 - ITJ(PT) PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CI T(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESE NT CASE, TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FILED, IS LESS THAN RS.20 LAKHS. FURTHER, THE CASE O F THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE - VERIFICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUE S CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, TH EN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 4 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 13 - 08 - 201 8 SD/ - SD/ - ( MADHUMITA ROY ) ( AMARJIT SINGH ) JUDICIAL MEMBER (ACCOUNTANT MEMBER) I.T.A NO. 3559 /AHD/20 16 A.Y. 2010 - 11 PAGE NO DC IT VS. M/S. NIYATI CONSTRUCTION CO. 3 AHMEDABAD : DATED 13 /08 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,