The ITO, Ward-3(3)(2), Ahmedabad V. Shri Jasubhai Jagabhai Patel, Ahmedabad

ITA 367/AHD/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3919 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 12-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Assessee Lawyers: S N DIVETIA
• Keywords: Tax effect

Judgement Text

, ,L ,L,L ,L- -- -,E ,E,E ,E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD LKOZJH OLHE VGEN] YS[KK LNL; ,OA EK/KQFERK JKW;] LKOZJH OLHE VGEN] YS[KK LNL; ,OA EK/KQFERK JKW;] LKOZJH OLHE VGEN] YS[KK LNL; ,OA EK/KQFERK JKW;] LKOZJH OLHE VGEN] YS[KK LNL; ,OA EK/KQFERK JKW;] U; KF;D LNL; DS LE{KA U;KF;D LNL; DS LE{KA U;KF;D LNL; DS LE{KA U;KF;D LNL; DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 367/AHD/2016 ( / ASSESSMENT YEAR : 2010-11) ITO, WD. 3(3)(2), AHMEDABAD. / VS. JASUBHAI JAGABHAI PATEL, 12, MADHAV BAUG BUNGLOWS, NR. SURYA DEEP BUNGLOWS, BADSHAH FARM, SHIVDHARA BUS STOP, THALTEJ, AHMEDABAD 380 009. ./ ./ PAN/GIR NO. : ANUPP 7770 R ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI VILAS V. SHINDE, SR.D.R / RESPONDENT BY : SHRI S. N. DIVETIA, A.R. / DATE OF HEARING 12/07/2018 ! / DATE OF PRONOUNCEMENT 03/10/2018 '# / 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(3)(2 )/467/14-15 DATED 07-12-2012 ARISING IN THE MATTER OF ASSESSMENT ORDE R PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961(HERE-IN-AFTER REFERRED TO AS 'THE ACT') DATED 28.03.2013 RELEVANT TO ASSESSMENT YEAR (AY) 2010-11. ITA NO.367/AHD/2016 ITO VS. JASUBHAI JAGABHAI PATEL A .Y. 2010-11 - 2 - 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE AR E AS UNDER:- 1. THE LD. C1T(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION OF RS.43,97,941/- MADE ON ACCOUNT OF DISALLOWANCE OF S HORT TERM CAPITAL LOSS ON SHARES & SECURITIES. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS BY NOT APPRECIATING THAT THE ASSESSEE DID NOT HAVE ANY DEMAT ACCOUNT AND ALL THE TRANSACTIONS WERE SHOWN TO HAVE BEEN MADE THROUGH POOL ACCOUNT W ITH EDEN FINANCIAL SERVICES. MUMBAI WHOSE BROKER'S LICENSE W AS CANCELLED YEARS BACK. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS BY NOT APPRECIATING THAT THE BANK ACCOUNT OF THE ASSESSEE DO NOT SHOW ANY PA YMENTS TO BROKERS, THERE IS NO OPENING AND CLOSING STOCK OF SHARES AND MOREOVER NO PAYMENT WAS MADE TO BROKER AGAINST LOSSES. 4. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION OF RS.1,90,000/- MADE ON ACCOUNT OF DISALLOWANCE EXPEN SES. 5. THE LD. CIT(A) HAS ERRED IN APPRECIATING THE FACT T HAT THE LEDGER ACCOUNT OF EDEN FINANCIAL SERVICES IN THE BOOKS OF THE ASSE SSEE AND LEDGER ACCOUNT OF AXIS BANK ARE NOT MATCHED WITH EACH OTHE R. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. 7. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A) MAY BE SET-ASIDE AND THAT OF THE ASSESSING O FFICER BE RESTORED. 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/ ITA NO.367/AHD/2016 ITO VS. JASUBHAI JAGABHAI PATEL A .Y. 2010-11 - 3 - APPEALS BEFORE SUPREME COURT KEEPING IN VIEW THE MO NETARY LIMITS AND CONDITIONS SPECIFIED BELOW. 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 AT THE LIBERTY TO MOVE THE MISCELLANEOUS APPLICATION T O RECALL THE ORDER IF THE ITA NO.367/AHD/2016 ITO VS. JASUBHAI JAGABHAI PATEL A .Y. 2010-11 - 4 - TAX EFFECT EXCEEDS THE THRESHOLD LIMIT OR THE CASE OF THE REVENUE FALLS IN 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 03/10/2018 SD/- S D/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; (MADHUMITA ROY) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 03/10/2018 PRITI YADAV, SR.PS !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. % &' ( / CONCERNED CIT 4. ( () / THE CIT(A)-3, AHMEDABAD. 5. +,- ..&' , &'! , 01'%' / DR, ITAT, AHMEDABAD. 6. -23 4 / GUARD FILE. $ % / BY ORDER, + . //TRUE COPY// &/% () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD