The Dy. Commr. Of Income Tax, Cir.-1(1), RAJKOT-GUJARAT V. Shri Dharmshi B. Padhiyar, RAJKOT-GUJARAT

ITA 499/RJT/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9598 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 13-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 499/RJT/2015 / ASSESSMENT YEAR: 2012-13 DCIT, CIRCLE 1(1), RAJKOT-360 001. VS. SHRI DHARMSHI B. PADHIYAR, AT & POST : KHERDA, TALUKA : KOTDA SANGANI, RAJKOT. (PAN : AGIPP 1328 G) / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI PRAVEEN VERMA, SR. D. R. REVENUE BY : SHRI VIMAL DESAI, A.R. / DATE OF HEARING : 26.10.2018 / DATE OF PRONOUNCEMENT : 27.11.2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF T HE REVENUE AGAINST THE APPELLATE ORDER OF THE LEARNED COMMISSIONER OF INC OME-TAX (APPEALS)-I, RAJKOT [CIT(A) IN SHORT] RELEVANT TO ASSESSMENT YEAR 2012-13. 2. REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT, THE ASSESSEE HAD NOT INCLUDED SERVICE TAX IN ITS GROSS RECEIPT ON ONE HAND, BUT COLLECTED THE SAME AND NOT REMITTED THE SAME TO THE GOVERNMENT ACCOUNT ON THE OTHER HAND, AND HENCE, SUCH SERVICE TAX BECOMES INCOME IN THE HANDS OF THE ASSESSEE ? 2. WHETHER THE ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ID. C1T(A) ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAD FOLLOWED EXCLUSIVE METHOD ? 3. AT THE TIME OF THE HEARING, WE OBSERVE THAT THE TAX E FFECT IN THE APPEAL FILED BY THE REVENUE IS LESS THAN RS. 20 LACS. AS PER T HE CIRCULAR NO. 3 OF 2018 2 ITA NO.499/RJT/2015 DCIT VS. SHRI DHARSHI B. PADHIYAR AY :2012-13 DATED 11/07/2018 ISSUED BY CBDT RECENTLY ALL PENDING APPEALS FILED BY REVENUE ARE LIABLE TO BE DISMISSED/ WITHDRAWN/ NOT PRE SSED TO REDUCE THE LITIGATION WHERE THE TAX EFFECT DOES NOT EXCEED THE PRESCRIBED MONETARY LIMIT, I.E., RS.20 LACS. THE RELEVANT EXTRACT OF THE CIRCULAR IS REPRODUCE D BELOW: 2. IN SUPERSESSION OF THE ABOVE CIRCULAR, IT HAS BEEN DECIDED BY THE BOARD THAT DEPARTMENTAL APPEALS MAY BE FILED ON MERITS BEFOR E INCOME TAX APPELLATE TRIBUNAL AND HIGH COURTS AND SLPS/ APPEALS B EFORE SUPREME COURT KEEPING IN VIEW THE MONETARY LIMITS AND CONDITIONS SPECIFIE D BELOW. 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CA SES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMITS GIVEN HEREUNDER: S. NO. APPEALS/ SLPS IN INCOME-TAX MATTERS MONETARY LIMIT (RS.) 1. BEFORE APPELLATE TRIBUNAL 20,00,000 2. BEFORE HIGH COURT 50,00,000 3. BEFORE SUPREME COURT 1,00,00,000 THE MONETARY LIMIT FOR FILING THE APPEALS BY THE REVENUE BEFO RE THE TRIBUNAL HAS BEEN INCREASED TO RS. 20 LACS. IT IS ALSO CLARIFIED IN THE SAID CIRCULAR THAT THE SAID MONETARY LIMIT IS APPLICABLE RETROSPECTIVELY EVEN TO THE APPEALS PENDING BEFORE THE TRIBUNAL. THE CBDT HAS ALSO INSTRUCTED TH AT SUCH PENDING APPEALS BELOW THIS SPECIFIED TAX LIMIT OF RS.20 LACS MAY BE WITHDRAWN / NOT PRESSED. IN THE CASE ON HAND, IT WAS NOTICED THAT THE TAX EFFECT ON THE DISPUTED ISSUE RAISED BY THE REVENUE IS CLAIMED TO BE LESS RS.20 LACS. T HEREFORE APPEAL OF THE REVENUE IS REQUIRED TO BE DISMISSED IN LIMINE IN TERMS OF THE ABOVE CIRCULAR. 4. THE LD. DR FOR THE REVENUE FAIRLY AGREED ON THE APP LICABILITY OF THE CBDT CIRCULAR NO. 3 OF 2018. ACCORDINGLY, THE APPEAL OF THE REVENUE IS 3 ITA NO.499/RJT/2015 DCIT VS. SHRI DHARSHI B. PADHIYAR AY :2012-13 DISMISSED AS NOT MAINTAINABLE. HOWEVER, THE REVENUE IS ON THE LIBERTY TO MOVE THE MISCELLANEOUS APPLICATION TO RECALL THE ORDER IF THE TAX EFFECT EXCEEDS THE THRESHOLD LIMIT OR THE CASE OF THE REVENUE FALLS IN AN Y OF THE EXCEPTION PROVIDED IN THE AFORESAID CBDT CIRCULAR IN ANY MANNER. THE MA SHA LL BE FILED WITHIN THE PRESCRIBED TIME. HENCE THE APPEAL OF THE REVENUE IS DISMISSED . 5. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 27 TH NOVEMBER, 2018 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER ( WASEEM AHMED ) ACCOUNTANT MEMBER AHMEDABAD; DATED 27/11/2018 PRITI YADAV, SR.PS ! / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT 2. #$!' / THE RESPONDENT. 3. % & ' / CONCERNED CIT 4. & ' ( ) / THE CIT(A)- I, RAJKOT. 5. () * # , , /DR,ITAT, RAJKOT 6. * + , - / GUARD FILE. / BY ORDER, $ ( # //TRUE COPY// ' / # $% ( DY./ASSTT.REGISTRAR) &'( , / ITAT, RAJKOT 1. DATE OF DICTATION 02/11/2018. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 02/11/2018 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 02/11/2018 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK.. . 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER