The ITO, Ward-(2)(4), PORBANDAR V. M/s. Okhai Roadways, PORBANDAR

ITA 385/RJT/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0314 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 04-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT [CONDUCTED THROUGH E COURT AT AHMEDABAD] BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 385/RJT/2015 / ASSESSMENT YEAR: 2012-13 ITO, WARD-2(4) PORBANDAR. VS M/S.OKHAI ROADWAYS NR. HATHI TANKI MAIN BAZAR, ADITYANA DIST: PORBANDAR. PAN : AAAFO 7232 J ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI PRAVEEN VERMA, SR.DR ASSESSEE BY : NONE / DATE OF HEARING : 10/09/2018 /DATE OF PRONOUNCEMENT : 11/09/2018 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF THE LD.CIT(A), JAMNAGAR DATED 25.6.2015 FOR THE ASSESSMENT YEAR 2012-13 CHALLENGI NG DELETION OF DISALLOWANCE MADE BY THE AO OF RS.54,84,727/- BEING THE DIFFERENCE BETWEEN THE GROSS RECEIPTS AND THE RECEIPT SHOWN IN FORM NO.26AS. 2. WE HAVE GONE THROUGH THE GROUNDS OF APPEAL AND T HE MATERIAL AVAILABLE ON RECORD. DISPUTED ADDITION IS OF RS.54 ,84,727/-. THEREFORE, A QUERY WAS RAISED BY THE BENCH AS TO THE MAINTAINABI LITY OF THE PRESENT APPEAL, IN VIEW OF RECENT CBDT CIRCULAR NO.3/2018 D ATED 11.7.2018 RESTRICTING THE FILLING OF THE APPEAL BY THE REVENU E WHERE THE TAX EFFECT IS ITA NO.385/RJT/2015 - 2 - BELOW RS.20 LAKH, LD.DR DID NOT DISPUTE THE SAME, B UT SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACC ORDANCE WITH LAW. 3. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 4.9.2015. 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 TRIBUN AL 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.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRU CTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE DIS PUTED ADDITION IS OF RS.54,84,727/-, AND THEREFORE, THE TAX EFFECT AS PER CBDT CIRCULAR IS TAX ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOU LD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FIL ED, WOULD BE LESS THAN RS.20 LAKHS. THEREFORE, THE PRESENT APPEAL OF THE R EVENUE IS HIT BY THE CBDT CIRCULAR AND HENCE NOT MAINTAINABLE. FURTHER, LD.DR HAS NOT POINTED OUT WHETHER THE CASE OF THE REVENUE FALL WI THIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR OR NOT. 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-VERIFICA TION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT I S MORE OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN TH E CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED ITA NO.385/RJT/2015 - 3 - IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF TH E REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2018. SD/- (WASEEM AHMED) ACCOUNTANT MEMBER SD/- (RAJPAL YADAV) JUDICIAL MEMBER