The Assistant Commr. of Income Tax, Circle-2(1), RAJKOT-GUJARAT V. M/s Kishor Projects Pvt. Ltd., RAJKOT-GUJARAT

ITA 488/RJT/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4246 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 12-10-2015
• 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.488/RJT/2015 / ASSTT. YEAR: 2011-2012 ACIT, CIR.2(1) RAJKOT. VS M/S.K I SHOR PROJECTS P.LTD. BHUSHAN BLDG., 1 ST FLOOR RACE COURSE RING ROAD RAJKOT. PAN : AACCK 3721 F ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI PRAVEEN VERMA, SR.DR ASSESSEE BY : NONE / DATE OF HEARING : 24/10/2018 / DATE OF PRONOUNCEMENT: 01/11/2018 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST OR DER OF LD.CIT(A)-I RAJKOT DATED 16.7.2015 PASSED FOR THE ASSTT.YEAR 20 11-12. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, THOUGH NOTICE OF HEARING WAS DULY SERVED UPON THE RESPONDENT-ASSESSEE. HOWEVER, ASSESSEE FILED AN APPLICATION FOR ADJOURNMENT, WHICH IS DISMISSED. TH EREFORE, WE PROCEED TO DISPOSE OF THE APPEAL EX PARTE QUA ASSESSEE-RESPONDENT, AFTER HEARING THE LD.DR AND CONSIDERING THE MATERIAL AVAILABLE ON REC ORD. 3. AS SET OUT IN THE GROUNDS OF APPEAL, THE REVENUE HAS CHALLENGED DELETION OF VARIOUS ADDITIONS BY THE LD.CIT(A). WH ILE GOING THROUGH THE GROUNDS OF APPEAL, IT IS NOTICED THAT TOTAL TAX EFF ECT ON THE AGGREGATE OF ALL ITA NO.488/RJT/2015 2 ADDITIONS DOES NOT EXCEED RS.20 LAKHS, THEREFORE, R EVENUES APPEAL IS IN CONTRAVENTION OF THE RECENT CBDT CIRCULAR RESTRICTI NG THE REVENUE NOT TO FILE APPEAL BEFORE THE TRIBUNAL WHERE TAX EFFECT IS BELO W RS.20 LAKHS. WHEN A QUERY WAS PUT TO THE LD.DR IN THIS BEHALF, HE DID N OT CONTEST THE SAME AND LEFT THE MATTER TO BE DECIDED IN ACCORDANCE WITH LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 12.10.2015. ON 11.7.2018, CBDT HAS ISSUED A CIRCULAR NO.3/2018 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF APPEAL TO TH E TRIBUNAL AGAINST 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 INSTRUCTI ONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRE SENT CASE, THE TAX EFFECT ON THE DISPUTED ADDITIONS DOES NOT EXCEED RS.20 LAK HS. THE TAX EFFECT AS PER CBDT CIRCULAR IS TAX ON THE TOTAL INCOME ASS ESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCO ME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINS T WHICH APPEAL IS FILED, WOULD BE LESS THAN RS.20 LAKHS. THEREFORE, T HE PRESENT APPEAL OF THE REVENUE IS HIT BY THE CBDT CIRCULAR AND HENCE N OT MAINTAINABLE. FURTHER, LD.DR HAS NOT POINTED OUT WHETHER THE CASE OF THE REVENUE FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRC ULAR OR NOT. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISI ONS 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 ACCO RDINGLY 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 THE CIRCULAR, THEN ITA NO.488/RJT/2015 3 THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE T RIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHI N THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE A PPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 1 ST NOVEMBER, 2018 AT AHMEDABAD. SD/- SD/- ( WASEEM AHMED ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER