The ITO, Ward-2(4), Surat V. Shri Rajiv Sumantrai Bhatarkar, Surat

ITA 358/AHD/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1880 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-04-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 05-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Assessee Lawyers: DIGANT S NAIK
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA.NO.358/AHD/2014 / ASSTT. YEAR: 2005-2006 ITO, WARD - 2(4) SURAT. VS SHRI RAJIV SUMANTRAI BHATARKAR 39, MAHADEVNAGAR SOCIETY SAGRAMPURA, SURAT PIN : 395 004. PAN : ACKPB 2482 K ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI G.C. DAXINI, SR.DR ASSESSEE BY : SHRI DIGANT S. NAIK / DATE OF HEARING : 07/04/2016 / DATE OF PRONOUNCEMENT: 08/04/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF THE LD.CIT(A)-II, SURAT DATED 21.11.2013 PASSED FOR THE ASSTT.YEAR 2005-06. 2. THE ONLY ISSUE AGITATED BY THE REVENUE IN THIS A PPEAL IS AGAINST DELETION OF ADDITION OF RS.26.80 LAKHS ON ACCOUNT O F UNACCOUNTED SALES CONSIDERATION BY THE LD.CIT(A). ITA NO.358/AHD/2014 2 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE PRESENT APPEAL FILED BY THE REVENUE IS NOT MAINTAIN ABLE IN VIEW OF THE RECENT CBDT INSTRUCTIONS DIRECTING THE DEPARTMENT N OT TO FILE APPEAL, WHERE TAX EFFECT IS BELOW RS.10 LAKHS. THE LD.COUN SEL HAS SUBMITTED THE TAX EFFECT ON THE IMPUGNED ADDITION IS LESS THAN RS .10 LAKHS, THEREFORE, THE APPEAL OF THE REVENUE IS INADMISSIBLE AS PER TH E ABOVE CBDT CIRCULAR. THE LD.DR HAS NOT DISPUTED THE CBDT INSTRUCTIONS R ELIED UPON BY THE ASSESSEE NOR DISPUTED TAX EFFECT ON THE IMPUGNE D ADDITION. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 5.02.2014. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEAR ING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 L AKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT , MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEAL S ALSO. IN THE PRESENT CASE, ADDITION DELETED BY THE LD.CIT(A) AND AGGRIEV ED BY THE REVENUE IS RS.26.80 LAKHS. IN ACCORDANCE WITH THE ABOVE CBDT C IRCULAR THE TAX EFFECT ON THE SAME WOULD BE LESS THAN RS.10 LAKHS, AND THEREFORE, THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMIS SED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. FURTHE R, THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPE ALS, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-V ERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT I S MORE OR IT FALLS WITHIN ITA NO.358/AHD/2014 3 THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION , THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR REC ALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN LIMITATION. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 8 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER