ITO, UDAIPUR V. M/s. Sawaliya Enterprises, UDAIPUR

ITA 472/JODH/2009

• Counselvise Citation: 47223314 RSA 2009
• Duration Of Justice: 2 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 05-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.472/JU/2009 ASSESSMENT YEAR: 2004-05 INCOME TAX OFFICER, VS. M/S. SAWALIYA ENTERPRISE S, WARD 1(4), UDAIPUR. 1-TA-25, H.M., SEC-5, UDAIPUR (PAN: AADFS 9117 M). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R. KOKANI, D.R. RESPONDENT BY : NONE DATE OF HEARING : 02.07.2012 DATE OF PRONOUNCEMENT OF ORDER : 02.07.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 02.05.2009 PASSED BY THE LD. CIT(A), UDAIPUR FOR THE ASSESSMEN T YEAR 2004-05 ON THE FOLLOWING GROUNDS :- ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF T HE CASE, THE LEARNED CIT(A) HAS ERRED IN 1. DELEING THE DISALLOWANCE OF RS.3,46,238/- BEING 5% OUT OF TOTAL EXPENSES OF RS.69,24,755/- WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE A.O. ITA NO.472/JU/2009 A.Y. 2004-05 . 2 2. DELETING THE DISALLOWANCE OF RS.53,514/- MADE OUT O F REPAIRS AND MAINTENANCE EXPENSES. 3. DELEING THE DISALLOWANCE OF RS.36,364/- MADE OUT OF GITTI, BRICKS & CEMENT ETC. EXPENSES. 4. DELETING THE ADDITION OF RS.1,69,671/- AND RS.1 LAC S MADE BY INVOKING THE PROVISIONS OF SEC.41(1) OF THE I.T. AC T, 1961. 2. AT THE OUTSET, THE BENCH ASKED THE LD. DEPARTMEN TAL REPRESENTATIVE ABOUT THE TAX EFFECT IN THIS APPEAL. THE LD. DEPARTMENTAL RE PRESENTATIVE AGREED THAT THE TAX EFFECT IN THIS CASE IS LESS THAN ` 2,00,000/-. 3. THE C.B.D.T. IN PURSUANCE OF THE ABOVE PROVISION S ISSUED CIRCULAR/INSTRUCTION NO.05/2008 DATED 15.05.2008 PR ESCRIBING THEREIN THAT THE DEPARTMENT SHALL NOT PREFER APPEAL BEFORE THE TRIBU NAL IF THE TAX EFFECT DOES NOT EXCEED RS.2,00,000/-. IT IS SETTLED LAW THAT CIRC ULARS/INSTRUCTIONS ISSUED BY THE C.B.D.T. ARE BINDING ON ALL OFFICERS OF THE DEPARTM ENT. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT POINT OUT ANY EXCEPTIONAL CI RCUMSTANCES AS PROVIDED IN INSTRUCTION IN THE CASE UNDER CONSIDERATION. THE I NSTRUCTION OF C.B.D.T. DATED 15.05.2008 IS APPLICABLE TO THE DEPARTMENTAL APPEAL . ADMITTEDLY, THE TAX EFFECT IS LESS THAN RS.2,00,000/-. THEREFORE, THE DEPARTMEN TAL APPEAL IS NOT MAINTAINABLE AND IS ACCORDINGLY DISMISSED. ITA NO.472/JU/2009 A.Y. 2004-05 . 3 4. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED IN LIMINE. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLAT E TRIBUNAL, JODHPUR TRUE COPY