The ACIT, Circle-1, RAJKOT-GUJARAT V. Shri Anilbhai D. Jethani, RAJKOT-GUJARAT

ITA 505/RJT/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9076 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 11-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Tax effect

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA VK;DJ VIHYH; VF/KDJ.K] JKTDKSV U;K;IHB] JKTDKSVA IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA EGKOHJ IZL KN] U;KF;D LNL; DS LE{KA LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA EGKOHJ IZL KN] U;KF;D LNL; DS LE{KA LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA EGKOHJ IZL KN] U;KF;D LNL; DS LE{KA LOZJH IZNHI DQEKJ DSFM;K] YS[KK LNL; ,OA EGKOHJ IZL KN] U;KF;D LNL; DS LE{KA (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) . /I.T.A. NO.505/RJT/2013 & CROSS OBJECTION NO.54/RJT/2015(IN I.T.A. NO.505/RJT /2013) ( / ASSESSMENT YEAR : 2009-10) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, RAJKOT V/S SHRI ANILBHAI D. JETHANI DHANRAJNI 25 SHANTI NIKETAN SOCIETY RAJKOT. ( VIHYKFKHZ VIHYKFKHZ VIHYKFKHZ VIHYKFKHZ /APPELLANT) ( / RESPONDENTS ) & CROSS OBJECTOR LFKK;H YS[KK LA LFKK;H YS[KK LA LFKK;H YS[KK LA LFKK;H YS[KK LA- -- - /PAN: ABEPJ 1043 P ASSESSEE BY: SHRI PRAVEEN VERMA, SR. D.R. REVENUE BY: SHRI DEVINA PATEL, A.R. ( )/ ORDER LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/04/201 7 ?KKSK.KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13/04/2017 PER MAHAVIR PRASAD, JUDICIAL MEMBER: 1. THIS APPEAL HAS BEEN FILED BY THE DEPARTMENT AND TH E CROSS-OBJECTION THEREOF FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE ITA NO. 505/RJT/2013 & CO NO.54/RJT/2013(IN ITA NO.505/RJT/ 2013) A.Y. 2009-10 2 COMMISSIONER OF INCOME TAX(APPEALS)-JAMNAGAR, DATED 17/09/2013 FOR THE ASSESSMENT YEAR (AY) 2009-10. 2. THE SUBSTANTIVE GRIEVANCE OF THE REVENUE READS AS U NDER:- (I) THE LEARNED CIT(A)-II, RAJKOT HAS ERRED IN LAW AND ON FACT BY DELETING THE ACTION OF THE AO FOR TREATING THE SHOR T TERM CAPITAL GAIN AND LONG TERM CAPITAL GAIN AS BUSINESS INCOME OF TH E ASSESSEE. (II) THE LEARNED CIT(A)-II, RAJKOT HAS ERRED IN LAW AND ON FACT BY DELETING THE FIRST GROUND AT APPELLATE STAGE AND NO T ADJUDICATING THE DISALLOWANCE U/S.40(A)(IA) OF RS.56,79,829/-. 3. THE LD.AR OF THE ASSESSEE POINTED OUT BY WAY OF WRI TTEN SUBMISSIONS THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE ON ACCOUN T OF LOW TAX EFFECT AND, THEREFORE, LIABLE TO BE DISMISSED. THE LD. SR. DR F AIRLY ADMITTED THAT THE TAX EFFECT ON THE IMPUGNED ADDITION IN THIS APPEAL IS L ESS THAN THE LIMIT PRESCRIBED BY THE CBDT CIRCULAR OF 10/12/2015 BEARI NG NO. 21 OF 2015. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REVENU E, WE FIND THAT REVENUE IS AGGRIEVED BY THE ORDER OF LEARNED CIT(A) IN RESP ECT OF THE RELIEF GIVEN BY HIM. AS PER THE CIRCULAR OF CENTRAL BOARD OF DIRE CT TAXES (CBDT) DATED 10/12/2015 (CIRCULAR NO. 21 OF 2015), NO DEPARTMENT APPEAL IS TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOM E TAX TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS. 10 LACS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PEND ING APPEAL ALSO. IN THE PRESENT CASE, SINCE IT IS AN UNDISPUTED FACT THAT O N THE ADDITION WHICH IS IN DISPUTE, THE TAX EFFECT IS LESS THAN RS. 10 LACS AN D IN THE ABSENCE OF ANY MATERIAL ON RECORD POINTED OUT BY THE REVENUE TO DE MONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXEMPTIONS SPEC IFIED IN CLAUSE (8) OF THE AFORESAID CBDT CIRCULAR, WE ARE OF THE VIEW THAT TH E MONETARY LIMIT ITA NO. 505/RJT/2013 & CO NO.54/RJT/2013(IN ITA NO.505/RJT/ 2013) A.Y. 2009-10 3 PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESAID CBD T CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEALS OF THE DEPARTMENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EF FECT. IN SUCH CIRCUMSTANCES, WE DISMISS THE APPEAL OF REVENUE WIT HOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. HOWEVER, IN CASE T HERE IS ANY ERROR IN THE COMPUTATION OF THE TAX EFFECT INVOLVED OR IF FOR AN Y REASON, THE AFORESAID CBDT CIRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN T O THE REVENUE TO SEEK REVIVAL OF THE APPEAL. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. 6. NOW WE TAKE UP THE CROSS OBJECTION NO. 54/RJT/2015. AT THIS STAGE LEARNED AR DOES NOT WANT TO PRESS THE CO AND SAME IS DISMIS SED AS NOT PRESSED. 7. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS D ISMISSED BECAUSE OF LOW TAX EFFECT AND CO DISMISSED AS NOT PRESSED. ORDER PRONOUNCED IN OPEN COURT ON 13/04/2017 SD/- SD/- IZ IZIZ IZNHI DQEKJ DSFM;K NHI DQEKJ DSFM;K NHI DQEKJ DSFM;K NHI DQEKJ DSFM;K EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YKS[KK LNL; YKS[KK LNL; YKS[KK LNL; YKS[KK LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: 13/04/2017 PRITI YADAV, SR. PS ITA NO. 505/RJT/2013 & CO NO.54/RJT/2013(IN ITA NO.505/RJT/ 2013) A.Y. 2009-10 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT-JAMNAGAR. 5. , , / DR, ITAT, AHMEDABAD 6. !' #$ / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) ! , ' # / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION 06/04/2017 (DICTATION-PAD 01 PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 07/04/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 04/04/2017 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 05/04/2017 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 DISPATCH OF THE ORDER