The ITO, Ward-5(3)(3), Ahmedabad V. Shri Chandresh Nanubhai Savalia, Ahmedabad

ITA 57/AHD/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2855 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 07-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NISHIT JESUN SHRI MEHUL PATEL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA.NO.57/AHD/2015 / ASSTT. YEAR: 2011-12 ITO, WARD - 5(3)(3) NARAYAN CHAMBERS AHMEDABAD. VS. SHRI CHANDRA N. SAVALIYA 147/3/1, MOHANNAGAR-1 NR. ROUTE NO.137 BUS STOP, BAPUNAGAR AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI MUDIT NAGPAL, SR.DR ASSESSEE BY : SHRI NISHIT JESUN (ON BEHALF OF SHRI MEHUL PATEL / DATE OF HEARING : 24/10/2018 / DATE OF PRONOUNCEMENT: 1 /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)-III, AHMEDABAD DATED 17.10.2014 PASSED FOR THE ASSTT.YEA R 2011-12. 2. BY THIS APPEAL, REVENUE HAS CHALLENGED DELETION OF PENALTY OF RS.16,03,700/- LEVIED UNDER SECTION 271AAA OF THE I NCOME TAX ACT, 1961. 3. AT THE VERY OUTSET, THE LD.COUNSEL FOR THE ASSES SEE HAS DRAWN OUR ATTENTION TOWARDS RECENT CBDT CIRCULAR RESTRICTING FILING OF APPEAL BY THE REVENUE BEFORE THE TRIBUNAL WHERE TAX EFFECT IS BEL OW RS.20 LAKHS. HE POINTED OUT THAT TAX EFFECT IN THE PRESENT CASE IS BELOW MONETARY LIMIT ITA NO.57/AHD/2015 2 PRESCRIBED BY THE CBDT, AND THEREFORE, APPEAL OF TH E REVENUE IS LIABLE TO DISMISSED AT THE THRESHOLD. 4. WHEN THE BENCH POINTED OUT TO THE LD.DR ABOUT MA INTAINABILITY REVENUES APPEAL BEFORE THE TRIBUNAL IN VIEW OF REC ENT CBDT CIRCULAR CITED BY THE LD.COUNSEL FOR THE ASSESSEE, THE LD.DR WAS U NABLE TO DISPUTE THE SAME, BUT LEFT TO THE TRIBUNAL TO DECIDE THE APPEAL IN AC CORDANCE WITH LAW. 5. WE HAVE HEARD LD.DR AND GONE THROUGH THE IMPUGNE D ORDERS. WE FIND THAT APPEAL OF THE REVENUE, WHICH IS FILED ON 7.1.2 015 IS HIT BY RECENT CBDT INSTRUCTION NO.3 OF 2018 DATED 11.08.2018 WHEREBY T HE BOARD HAS PROHIBITED ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPE AL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFEC T BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO . IN THE PRESENT CASE, THE TAX EFFECT ON THE DISPUTED PENALTY DOES NOT EXC EED RS.20 LAKHS. AS PER THE ABOVE CBDT CIRCULAR, IN CASE OF PENALTY ORD ERS, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. THEREFORE, THE PRESENT APPEAL OF THE REVENUE IS HIT BY THE CBDT CIRCULAR AND HENCE NOT MAINTAINABLE. FURT HER, LD.DR HAS NOT POINTED OUT WHETHER THE CASE OF THE REVENUE FALL WI THIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR OR NOT. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS 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 ACCORDINGLY DISMISSED. ITA NO.57/AHD/2015 3 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 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. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D DUE TO LOW TAX EFFECT ORDER PRONOUNCED IN THE COURT ON 1 ST NOVEMBER, 2018 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER