The Assistant Commr. of Income Tax, Cen. Circle-2, RAJKOT-GUJARAT V. M/s Vijay Builders, JAMNAGAR

ITA 524/RJT/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2338 (ITAT-RAJKOT)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 27-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Audit objection; Tax effect
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] - , !' #$, %& BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER SL. NO(S) ITA /CO NO(S) ASSESSMENT YEAR(S) APPEAL(S) /CO BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 5 24 / RJT /201 5 200 9 - 10 ACIT CENTRAL CIR-2 RAJKOT M/S.VIJAY BUILDERS 401, VRAJ APARTMENTS SARU SECTION ROAD IN FRONT OF POLE H.Q., JAMNAGAR PAN:AACFV 1651 Q 2. 5 2 6 / RJT /201 5 20 11 - 12 THE ACIT CENTRAL CIR-2 RAJKOT M/S.VIJAY BUILDERS, JAMNAGAR PAN:AACFV 1651 Q 3. 527 / RJT /201 5 20 12 - 13 THE ACIT CENTRAL CIR-2 RAJKOT M/S.VIJAY BUILDERS, JAMNAGAR PAN:AACFV 1651 Q 4. CO NO.64/RJT/15 (IN ITA NO.524/RJT/15) 2009 - 10 M/S.VIJAY BUILDERS, JAMNAGAR PAN:AACFV 1651 Q THE D CIT CENTRAL CIR-2 RAJKOT 5. CO NO.66/RJT/15 (IN ITA NO.526/RJT/15) 2011 - 12 M/S.VIJAY BUILDERS, JAMNAGAR PAN:AACFV 1651 Q THE D CIT CENTRAL CIR-2 RAJKOT 6. CO NO.67/RJT/15 (IN ITA NO.527/RJT/15) 2012 - 13 M/S.VIJAY BUILDERS, JAMNAGAR PAN:AACFV 1651 Q THE D CIT CENTRAL CIR-2 RAJKOT REVENUE BY : SHRI YOGESH PANDEY, SR.DR ASSESSEE BY : SHRI CHETAN AGRAWAL, CA ITA NOS.524,526 & 527/RJT/2015 FOR AYS 2009-10, 2011-12 & 2012-13 ACIT VS. M/S.VIJAY BUILDERS AND CO NOS.64, 66 & 67/RJT/2015(BY ASSESSEE) RESPEC TIVELY - 2 - !() * & / DATE OF HEARING 28/01/2016 +' * & / DATE OF PRONOUNCEMENT 29/01/2016 % / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE REVENUE AND THE ASSESSEE HAVE CHALLENGED THE SE PARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-11, AHMEDABAD [CIT(A) IN SHORT] DATED 23/07/2015 & 28/07/2015 BY FILING THE APPEALS AND THE CROSS OBJECTIONS FOR ASSESSMENT YEARS (AYS ) 2009-10, 2011-12 AND 2012-13 RESPECTIVELY. 2. AT THE OUTSET, IT IS NOTICED THAT THE ASSESSING OFFICER (AO IN SHORT) HAS ASSESSED THE TOTAL INCOME FOR AY 2009-10 AT RS. 86,64,365/-, FOR AY 2011-12 AT RS.2,16,83,835/- AND FOR AY 2012-13 AT RS.3,41,10,887/-. 2.1. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE TAX EFFECT INVOLVED IN THESE REVENUES APPEALS ARE LOWER THAN THE PRESCRIBED LIMIT AS PER CENTRAL BOARD OF DIRECT TAXES CIRCULAR NO. 2 1/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBE R 2015, THE REVISED LIMIT FOR PREFERRING REVENUE'S APPEALS IS R S.10 LACS. ITA NOS.524,526 & 527/RJT/2015 FOR AYS 2009-10, 2011-12 & 2012-13 ACIT VS. M/S.VIJAY BUILDERS AND CO NOS.64, 66 & 67/RJT/2015(BY ASSESSEE) RESPEC TIVELY - 3 - 2.2. THE LD.SR.DEPARTMENTAL REPRESENTATIVE COULD NO T CONTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE AS SESSEE. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. WE FIND THAT THE PRESENT APPEALS OF THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 I N F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WH ICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE CO MMISSIONER OF INCOME- TAX (APPEALS)S ORDER IS BELOW RS. 10 LAKHS, THEN T HAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIO NS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLIC ABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR AD DITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UN DISCLOSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT THE PRES ENT CASES DO NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THA N RS. 10 LAKHS. THEREFORE, THE PRESENT APPEALS ARE NOT MAINTAINABLE AND, HENCE, DISMISSED. 4. IN THE RESULT, ALL THE THREE APPEALS, I.E. ITA N OS.524, 526 & 527/RJT/2015 FOR AYS 2009-10, 2011-12 & 2012-13 RES PECTIVELY FILED BY THE REVENUE ARE DISMISSED IN LIMINE. ITA NOS.524,526 & 527/RJT/2015 FOR AYS 2009-10, 2011-12 & 2012-13 ACIT VS. M/S.VIJAY BUILDERS AND CO NOS.64, 66 & 67/RJT/2015(BY ASSESSEE) RESPEC TIVELY - 4 - 5. ASSESSEES CROSS OBJECTION NOS.64, 66 & 67/RJT/2 015 FOR AYS 2009-10, 2011-12 & 2012-13 [ARISING OUT OF ITA NOS. 524, 526 & 527/RJT/2015 FOR AYS 2009-10, 2011-12 & 2012-13-REV ENUES APPEALS- SUPRA]. 5.1 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS CROSS- OBJECTIONS:- IN CO NOS.64 & 66/RJT/2015 FOR AYS 2009-10 & 2011-1 2 1. HONBLE CIT(A) HAS ERRED IN LAW AS WELL AS ON FACT S IN UPHOLDING ASSESSMENT MADE U/S.153A R.W.S. 143(3) OF THE INCOM E TAX ACT, 1961. HONBLE CIT(A) HAS ERRED IN LAW AS WELL AS O N FACTS IN UPHOLDING ADDITIONS MADE ON THE BASIS OF REGULAR BO OKS OF ACCOUNTS RATHER THAN INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. RESPONDENT CRAVES LEAVE TO ADD, AMEND, ALTER OR WIT HDRAW ANY GROUND OF CROSS-OBJECTION. IN CO NO.67/RJT/2015 FOR AY 2012-13 1. HONBLE CIT(A) HAS ERRED IN LAW AS WELL AS ON FACT S IN NOT GRANTING ADJUSTMENT OF ADDITIONS MADE DURING THE COURSE OF A SSESSMENT AGAINST UNUTILIZED DISCLOSURE MADE DURING THE COURS E OF SEARCH. 6. SINCE WE HAVE DISMISSED THE REVENUES APPEALS IN ITA NOS.524, 526 & 527/RJT/2015 FOR AYS 2009-10, 2011-12 & 2012- 13-SUPRA, AS NOT MAINTAINABLE, THEREFORE CROSS OBJECTIONS FILED BY T HE ASSESSEE OUT OF REVENUES APPEALS ARE ALSO DISMISSED AS NOT MAINTAI NABLE. HOWEVER, ASSESSEE WOULD BE AT LIBERTY TO FILE AN APPEAL AGAI NST THE ORDER OF THE LD.CIT(A), IF SO ADVISED. ITA NOS.524,526 & 527/RJT/2015 FOR AYS 2009-10, 2011-12 & 2012-13 ACIT VS. M/S.VIJAY BUILDERS AND CO NOS.64, 66 & 67/RJT/2015(BY ASSESSEE) RESPEC TIVELY - 5 - 7. IN THE RESULT, REVENUES APPEALS AS WELL AS ASSE SSEES CROSS OBJECTIONS ARE DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE COURT ON 29 TH JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( !' #$) ( ) %& ( MANISH BORAD ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD ; DATED 29/ 01 /2016 ..!, (.!../ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. 3412 / THE RESPONDENT. 3. 5#5 6 / CONCERNED CIT 4. 6 ( ) / THE CIT(A)-11, AHMEDABAD 5. 8(9 3! , , /DR,ITAT, RAJKOT 6. 9DE F) / GUARD FILE. / BY ORDER, 48 3 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) ! '# $, / ITAT, RAJKOT 1. DATE OF DICTATION .. 28.1.16 (BELOW 10 LACS) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..28.1.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 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.29.1.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29.1.16 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