The ITO, Ward-1(2), Surat V. Himson Overseas Pvt.Ltd, Surat

ITA 372/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9874 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 09-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SONIA KUMAR
• Keywords: Retrospective amendment; Tax effect; Revised return
• Section: 80HHC

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE S/SHRI RAJPAL YADAV,JM & MANISH BORAD, AM ./ITA.NO.372/AHD/2012 ( / ASSTT YEAR :2004-05) INCOME-TAX OFFICER, WARD -1(2), SURAT. VS. M/S HIMSON OVERSEAS P. LTD., HIRALAL COLONY, A.K. ROAD, SURAT. PAN : AAACT8781A (APPELLANT) (RESPONDENT) / APPELLANT BY: MRS. SONIA KUMAR, SR.DR / RESPONDENT BY: NONE (WRITTEN SUBMISSION) / DATE OF HEARING 13/01/2016 /DATE OF PRONOUNCEMENT 13-01-2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LD.COMMISSIONER INCOME-TAX (APPEALS)-I, SURAT, DATE D 18/11/2011 PASSED FOR THE ASSTT.YEAR 2004-05. 2. FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAISED IN THIS APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A)-I, SURAT HAS ERRED IN DELETING THE ADDITION OF RS.4,08,534/- ON ACCOUNT OF UNPROVED CREDITORS WITHOUT APPRECIATI NG THE FACT THAT RELIEF OF RS.1,17,045/- WAS ALREADY GRANTED WHILE G IVING EFFECT ON 5.3.2009 TO APPEAL ORDER NO.CAS-I/245/2006-07 DATED 31.01.2008 AND THE ASSESSEE IS ENTITLED RELIEF OF RS.2,91,489/ - ONLY. ITA.NO.372/AHD/2012 ASST. YEAR 2004-05 - 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A)-I, SURAT HAS ERRED IN ALLOWING DEDUCTION OF RS.4,83,810/- CLAIMED U/S 80HHC IN REVISED RETURN OF INCOME WITHO UT APPRECIATING THE FACTS THAT DURING THE COURSE OF AS SESSMENT PROCEEDINGS AS WELL AS WHILE GIVING EFFECT TO THE O RDER OF HONBLE ITAT, THE ASSESSEE FAILED TO PRODUCE COPIES OF BANK ACCOUNT IN RESPECT OF EXPORTS SALES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) MAY BE SET ASIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. SO AFTE R HEARING THE LD. DR AND CONSIDERING THE FACTS OF THE CASE WE PROCEED TO DECIDE THE APPEAL. WE FIND THAT T HIS APPEAL WAS PRESENTED ON 09/02/2012. ON 10.12.2 015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/201 5 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRU CTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRE SENT CASE, THE ASSESSED INCOME OF THE ASSESSEE IS OF RS.37,23,902/-. THE A DDITIONS DELETED BY THE CIT(A) ARE RS.4,08,534/- & RS.4,83,810/-. THE TAX EFFECT ON DELETION OF THIS TOTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AM BIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERV ED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ITA.NO.372/AHD/2012 ASST. YEAR 2004-05 - 3 ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCE PTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, TH E APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 13 JANUARY, 2016 A T AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 13/01/2016 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , , DR,ITAT, AHMEDABAD. 6. .0 12 / GUARD FILE. ) ' / BY ORDER, ' (3 (ASSTT.REGISTRAR) ITAT, AHMEDABAD ITA.NO.372/AHD/2012 ASST. YEAR 2004-05 - 4 1. DATE OF DICTATION .. : 13/1/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 13/1/2016 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. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 19/1/2016 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