The ITO, Ward-2, Godhra V. Shri Sunilkumar Gokuldas Shah, Panchmahal

ITA 526/AHD/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0963 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 02-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A C SHAH
• Keywords: Business expenditure; Tax effect
• Section: 268A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD [THROUGH VIRTUAL COURT] BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA.NO.526/AHD/2017 / ASSTT.YEAR : 2011-12 INCOME TAX OFFICER WARD-2 GODHARA. VS. SHRI SUNILKUMAR GOKULDAS SHAH NIRMAY CLINIC OPP: BUS STOP, HALOL 389 350 DIST. PANCHMAHALS. PAN : AHFPS 3825 H / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI SHYAM PRASAD, SR.DR ASSESSEE BY : SHRI A.C. SHAH, AR / DATE OF HEARING : 09/07/2021 / DATE OF PRONOUNCEMENT: 09/07/2021 !'/ O R D E R PER SHRI RAJPAL YADAV, VICE-PRESIDENT THIS IS REVENUES DIRECTED AGAINST ORDER OF THE LD. CIT(A)-4, VADODARA DATED 27.10.2016 PASSED FOR THE ASSTT.YEAR 201-12. 2. IN THIS APPEAL, THE GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT(A) HAS ERRED IN DELETING ADDITION OF RS.1,29,24,472/- BEING UNEXPLAINED CHEQUE DEPOSITS AND RS.44,38,193/- BEING UNEXPLAINE D CASH DEPOSITS. 3. BEFORE TAKING UP THE ISSUE ON MERIT, THE LD.COUN SEL FOR THE ASSESSEE FILED A NOTE DEMONSTRATING THAT TAX EFFECT INVOLVED IN THE APPEAL OF THE REVENUE FALLS BELOW THE STATUTORY LIMIT FOR FILING APPEAL BEFORE THE TRIBUNAL BY THE DEPARTMENT. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED IN TERMS OF RECENT CBDT CIRCULAR NO.17 OF 2019 DATE D 8.8.2019, WHEREBY DEPARTMENT HAS BEEN INSTRUCTED NOT TO FILE APPEAL BEFORE THE ITA NO.526/AHD/2017 2 TRIBUNAL WHERE TAX EFFECT OR QUANTUM OF PENALTY IS BELOW RS.50 LAKHS, AND THEREFORE, THE APPEAL OF THE REVENUE LIABLE TO DISMISSED IN LIMINE . WORKING OF THE TAX EFFECT IN THE IMPUGNED ADDITIONS GIVEN BY THE ASSESSEE READS AS UNDER: ASSESSMENT YEAR : 2011-2012 ITA NO. : 526/AHD/2017 DATE OF HEARING : 09-07-2021 THE ASSESSEE HAS WORKED OUT THE TAX EFFECT AS UNDER : WORKING OF TAX EFFECT: ADDITIONS MADE BY THE ASSESSING OFFICER AS PER ASSESSMENT ORDER:- I) CASH AND CHEQUE DEPOSIT IN BANK ACCOUNTS RS.1,92,29,788 II) SHARE TRADING ACTIVITIES RS.19,67,399 III) BUSINESS EXPENSES RS.1,00,000/- RS.2,12,97,187 AMOUNTS CONFIRMED BY CIT(A) RS.52,39,282 (THE ASSESSEE HAS NOT PREFERRED APPEAL BEFORE ITAT) RELIEF GRANTED BY CIT(A) RS.1,60,57,905 TAX @ 30% RS.48,17,371 SURCHARGE @ IN FORCE FOR A.Y.2011-2012 RS.NIL ADD: ADDITIONAL SURCHARGE @ IN FORCE FOR A.Y.2011-2012 EDUCATIONAL CESS @ 2% RS.96,937 HIGHER EDUCATION CESS @ 1% RS.48,174 TAX PAYABLE RS.49,61,892 WHICH IS BELOW RS.50,00,000/- PLACE : AHMEDABAD DATE : 07-07-2021 SD/- SUNILKUMAR G. SHAH ITA NO.526/AHD/2017 3 THE LD.DR DID NOT DISPUTE ABOVE WORKING OF THE TAX EFFECT SUBMITTED BY THE ASSESSEE AND APPLICABILITY OF THE RECENT CBDT C IRCULAR IN THIS BEHALF, BUT LEFT TO THE TRIBUNAL TO PASS APPROPRIATE ORDER IN THE MATTER. 4. AFTER HEARING BOTH THE SIDES AND AFTER PERUSAL O F THE ABOVE CBDT INSTRUCTION, WE ARE OF THE VIEW THAT AS PER THE WOR KING OF TAX EFFECT SUBMITTED BY THE ASSESSEE, WHICH WAS NOT DISPUTED B Y THE REVENUE, THE PRESENT APPEAL OF THE REVENUE FALLS WITHIN THE PURV IEW OF THE CBDT INSTRUCTION CITED (SUPRA). THEREFORE, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCO ME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIFICA TION AT THE END OF THE AO IT CAN BE DEMONSTRATED THAT THE TAX EFFECT A ND/OR QUANTUM OF PENALTY IS MORE, OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SU CH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE A CT. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED DUE T O LOW TAX EFFECT. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D DUE TO LOW TAX EFFECT. ORDER PRONOUNCED IN THE COURT ON 9 TH JULY, 2021 AT AHMEDABAD. (WASEEM AHMED) ACCOUNTANT MEMBER (RAJPAL YADAV) VICE-PRESIDENT