Income Tax Officer, Ward-2, , Morbi V. Hussain Gulamabbas Lokhandwala, Morbi

ITA 371/RJT/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1445 (ITAT-RAJKOT)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 03-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJAN BHIMANI
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NOS.371 AND 372/RJT/2017 (ASSESSMENT YEARS : 2008-09 & 2010-11) THE ITO WARD-2 MORBI VS. SHRI HUSSAIN GULAMABHAS LOKHANDWALA DAUDI PLOT SHERI NO.1 NR. RASHTRIYA SHALA MORBI [PAN NO.AARPL 9557 C] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI PRAVEEN VERMA, SR.DR RESPONDENT BY : SHRI RAJAN BHIMANI, AR DATE OF HEARING 31/08/2018 DATE OF PRONOUNCEMENT 05 /09/2018 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEALS HAVE BEEN FILED BEFORE US BY TH E REVENUE AGAINST THE SEPARATE ORDERS IDENTICALLY DATED 31.08.2017 PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS)-3, RAJKOT [LD.CIT(A) IN SHORT] FOR AS SESSMENT YEARS (AYS) 2008-09 & 2010-11. 2. THE COMMON GROUND OF APPEALS RAISED BY THE REVE NUE READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) HAS ERRED IN DELETING THE PENALTY SIMPLY ON THE TECHNICAL GROUND THAT THE AO HAD NOT SPECIFICALLY MENTIONED IN THE NOTICE U/S.274 R.W.S. 271(1)(C) AS TO WHETHER THE APPELLANT IS GUILTY OF HAVING FURNISHED INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME WITHOUT GOING INTO THE MERIT OF THE CASE. - 2 - ITA NOS.371 & 372/RJT/2017 ITO VS. SHRI HUSSAI GULAMABHAS LOKHANDWALA ASST.YEARS 2008-09 & 2010-11 3. AT THE OUTSET, AFTER GOING THROUGH THE GROUND OF APPEALS AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW, A QUERY WAS RAISE D BY THE BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEALS FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIRCULAR NO.3/2018 DATED 11.7.2018 RESTRICTING THE FILLING O F THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKHS, THE LD.DR DID NOT DISPUTE THE SAME AND SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACC ORDANCE WITH LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 03.11.2017. ON 11.7.2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2 018 UNDER FILE NO.F.NO.279/MISC.142/2007-ITJ(PT) PROHIBITING ITS S UBORDINATE 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.2 0 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEA BLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE I SSUE AGAINST WHICH APPEALS ARE FILED, IS LESS THAN RS.20 LAKHS IN EACH CASE. FURTHER, THE CASE OF 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 INCO ME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEALS OF THE REVENUE DESERVE TO BE DI SMISSED. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIFICA TION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPAR TMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH AP PLICATION SHOULD BE FILED WITHIN THE TIME - 3 - ITA NOS.371 & 372/RJT/2017 ITO VS. SHRI HUSSAI GULAMABHAS LOKHANDWALA ASST.YEARS 2008-09 & 2010-11 PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE , THE APPEALS OF THE REVENUE ARE DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 05 / 09 /2018 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 05/ 09 /2018 .., . ../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-3, RAJKOT 5. '#$ , % , /DR,ITAT, RAJKOT 6. $23 45 / GUARD FILE. / BY ORDER, ' //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, / ITAT, RAJKOT 1. DATE OF DICTATION .. 4.9.18 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 4.9.18 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.5.9.18 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5.9.18 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER