The ITO, Ward-2, Godhra V. M/s. Sanskar Associates, Godhra

ITA 3968/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8820 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-03-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 29-10-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H N SINGHDR
• Assessee Lawyers: URVASHI HODHANAR
• Keywords: Audit objection; Question of law; Tax effect

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL AHEMADABAD B BENCH BEFORE S/SHRI D.T.GARASIA, JUDICIAL MEMBER & A.N.PAHUJA, ACCOUNTANT MEMBER ITA NOS.3968/AHD/2007 ASSESSMENT YEAR: 2004-05 INCOME-TAX OFFICER- WARD 2 CIVIL LINES ROAD,GODHRA (APPELLANT) V. M/ S SANSKAR ASSOCIATES, SANSKAR NAGARI,NEAR ANKUR SCHOOL,BHURAVAV,GODHRA. [PAN :AAZSS4116O] (RESPONDENT) ASSESSEE BY : MS. URVASHI HODHAN,AR REVENUE BY : SHRI H.N.SINGH,DR ORDER A.N.PAHUJA :THIS APPEAL OF THE REVENUE ARISING OUT OF AN ORDER DATED 17.8.2007 OF LD. CIT(A)-VI, BARODA, RAISES FI VE GROUNDS RELATING TO CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IB(10) OF THE I NCOME-TAX ACT,1961[HEREINAFTER REFERRED TO AS THE ACT] 2. AT THE OUTSET, THE LD. AR ON BEHALF OF THE ASS ESSEE POINTED OUT THAT THE TAX EFFECT IN THIS APPEAL FILED BY TH E REVENUE IS RS. 1,93,215/- I.E. BELOW THE LIMIT OF RS.2 LAKHS STIP ULATED BY THE CBDT IN THEIR INSTRUCTION FOR FILING APPEALS. THOUG H THE LD. DR MENTIONED THAT ISSUE IS RECURRING , HE COULD NOT PO INT OUT THAT THE CASE FALLS WITHIN ANY OF THE FOLLOWING EXCEPTIONS I N CBDT INSTRUCTION NO.279/MISC.-64/05-ITJ DATED 24.10.2005 OR EARLIER INSTRUCTION NO. 1979 DATED 27.3.2000 AS CLARIFIED V IDE SUBSEQUENT INSTRUCTION NO. 1985 DATED 29.6.2000 OR EVEN IN REC ENT INSTRUCTION NO. 5 OF 2008 DATED 15.5.2008: ITA NOS.3968/AHD/2007 2 (A) WHERE THE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, (B) WHERE THE BOARD'S ORDER, NOTIFICATION, INSTRUCT ION OR CIRCULAR IS THE SUBJECT-MATTER OF AN ADVERSE ORDER, (C) WHERE PROSECUTION PROCEEDINGS ARE CONTEMPLATED AGAINST THE ASSESSEE, AND (D) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF THE ACT IS UNDER CHALLENGE. 2.1 EVEN THE INSTRUCTION NO. 5 OF 2008 DATED 15.52008 SEEMS TO LIMIT THE ISSUES IN SO FAR AS THE SAME QUESTION OF LAW OR REC URRING ISSUE EXCEPT TO THE EXTENT PROVIDED IN PARA.5. ON A PROPER READING OF P ARA.5 OF THE INSTRUCTIONS IT WOULD BE CLEAR THAT A DUTY IS CAST ON THE ASSESSING OFFICER THAT EVEN IF THE DISPUTED QUESTIONS ARISE FOR MORE THAN ONE ASSESSME NT YEAR THEN AN APPEAL SHOULD BE FILED ONLY IN RESPECT OF THOSE YEARS WHER E THE MONETARY LIMIT EXCEEDS THE LIMITS AS SPECIFIED IN PARA.3 OF THE IN STRUCTIONS. 3. IN VIEW OF THE FOREGOING AND IN THE LIGHT OF AFORES AID INSTRUCTION DATED 24.10.2005 OF THE CBDT AND DECISION DATED 5.8.2008 OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. CO NCORD PHAMACEUTICALS IN TAX APPEAL NOS. 1402 TO 1405 OF 2007 AS ALSO CONSISTE NT VIEW TAKEN BY VARIOUS HIGH COURTS IN THE CASE OF CIT VS. CHHAJER PACKAGING AND PLASTICS P.LTD., 300 ITR 180(BOM.),CIT VS. CAMC O COLOUR CO,254 ITR 565(BOM.), & CIT VS. ZOEB Y TOPIWALA,284 ITR 379(BOM), CIT VS. S.ANNAMALAI,258 ITR 675(MADRAS) A ND HONBLE DELHI HIGH COURT IN THEIR ORDER DATED 1.8.2 007 IN ITA NO. 683/2007 IN THE CASE OF CIT VS. MANISH BHAMBRI, TH IS APPEAL CAN NOT BE ENTERTAINED. ITA NOS.3968/AHD/2007 3 4. RESPECTFULLY FOLLOWING THE AFORESA ID DECISIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT AND OTHER HIGH COURTS, T HIS APPEAL IS DISMISSED, IN LIMINE. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 23RD MARCH, 2010 SD/- SD/- (D.T.GARASIA) (A.N.PAHUJA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 23RD MARCH, 2010 AHMEDABAD COPY OF THE ORDER FORWARDED TO:- THE ASSESSEE/ INCOME-TAX OFFICER- WARD-2, GODHRA / CIT CONCERNED/ CIT(A)-VI, BARODA /THE DR/GUARD FILE DY REGISTRAR