The ITO, Ward-1(1)(2), Ahmedabad V. M/s. Babubhai Ramanbhai Patel, Ahmedabad

ITA 389/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7805 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 15-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PP A
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO. 389/AHD/2017 / ASSESSMENT YEAR: 2012-13 ITO, WARD-1(1)(2) AMBAWADI AHMEDABAD. VS M/S.BABUBHAI RAMANBHAI PATEL DARSHAK 14, SWASTIK SOCIETY PUNJABI HALL LANE NAVRANGPURA AHMEDABAD 380 009. PAN : ABYPP 8048 A / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI R.P. MAURYA, SR.DR ASSESSEE BY : SHRI HIMANSHU SHAH, AR / DATE OF HEARING : 17/07/2018 /DATE OF PRONOUNCEMENT : 18/07/2018 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : THIS IS REVENUES APPEAL AGAINST ORDER OF THE LD.CIT(A)-1, AHMEDABAD DATED 2 9.12.2016 PASSED FOR THE ASSESSMENT YEAR 2012-13. 2. IN THIS APPEAL, REVENUE HAS CHALLENGED CIT(A)S ORDER IN DELETING VARIOUS ADDITIONS AS SET OUT IN THE GROUNDS OF APPE AL. 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE F OR THE ASSESSEE POINTED OUT THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINA BLE IN VIEW OF RECENT CBDT CIRCULAR NO.3/2018 DATED 11.7.2018 RESTRICTING THE FILLING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKH. THE TAX ITA NO.389/AHD/2017 - 2 - EFFECT ON THE DISPUTED ADDITION IS BELOW RS.20 LAKH S, THEREFORE, APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED. THE LD.COUNS EL COUNSEL HAS FILED A CALCULATION SHEET TO THIS EFFECT SHOWING TAX EFFECT IS BELOW RS.20 LAKHS. IT READS AS UNDER: SR.NO. GROUNDS OF APPEALS TAX EFFECT 1 A DELETING ADDITION OF RS.53,61,086/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN TAX @15.45 ON STCG 8,28,288 B DELETING ADDITION OF RS.50,150/- ON ACCOUNT OF LONG TERM CAPITAL GAIN-TAX @20.60% ON LTCG 10,331 2. DELETING ADDITION OF RS.17,40,000 U/S.41(1) OF THE IT ACT @ 30.90% 5,37,660 3. DELETING ADDITION OF RS.9,70,306/- ON ACCOUNT OF INTEREST FREE LOANS & ADVANCES- TAX @ 30.90% 2,99,825 4. DELETING ADDITION OF RS.30,437/- MADE U/S.124A OF I.T.ACT TAX @ 30.90% 9,405/- TOTAL 16,85,508/- LD.DR DID NOT DISPUTE THE SAME THE CALCULATION OF T AX EFFECT MADE BY THE ASSESSEE, BUT SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACCORDANCE WITH LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 15.2.2017. ON 8.1.2016 THE CBDT HAS ISSUED INSTRUCTIONS BEARIN G NO. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007-ITJ(PT) PROHIB ITING 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 ITA NO.389/AHD/2017 - 3 - RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRU CTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, AS PER THE CALCULATION SHEET SUBMITTED BY THE ASSESSEE SHOWS TOTAL TAX EFFECT OF RS.16,85,508, WHICH IS NOT CONTESTED BY THE REVENUE. THE TAX EFFECT AS P ER CBDT CIRCULAR IS TAX ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD 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, IS LESS THAN RS.20 LAKHS. FURTHER, THE CASE OF THE REVENUE ALSO DOES N OT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEP ING 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 REVE NUE 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 IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF TH E REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 17 TH JULY, 2018. SD/- SD/- (PRADIP KUMAR KEDIA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 17/07/2018