The ITO, Ward-1, GANDHIDHAM V. Shri Jaisinh Atmaram Chaudhary, GANDHIDHAM

ITA 634/RJT/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0132 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-10-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 07-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMARSR
• Assessee Lawyers: KALPESH JOSHI
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT [CONDUCTED THROUGH E COURT AT AHMEDABAD] BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA.NO.634/RJT/2014 / ASSTT. YEAR: 2010-2011 ITO, WARD - 1 GANDHIDHAM. VS SHRI JAISINH ATMARAM CHAUDHAR Y SHOP NO.11/A, MOHAN MARKET PLOT NO.58, SECTOR NO9B NR. HOEL GOKUL N.H. K/A, GANDHIDHAM-KUTCH. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI AVINASH KUMAR,SR.DR ASSESSEE BY : SHRI KALPESH JOSHI, AR / DATE OF HEARING : 17/10/2016 / DATE OF PRONOUNCEMENT: 18/10/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST TH E ORDER OF THE LD.CIT(A)-II DATED 8.8.2014 PASSED FOR THE ASSTT.YE AR 2010-11. 2. THE REVENUE IS AGGRIEVED BY THE ACTION OF THE LD .CIT(A) IN ALLOWING CREDIT OF TDS ON THE FREIGHT RECEIPTS TO THE ASSESS EE. 3. AT THE OUTSET, LD.COUNSEL FOR THE ASSESSEE SUBMI TTED THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE, IN VIEW OF THE REC ENT CBDT INSTRUCTION NO.21/2015, WHEREIN THE CBDT HAS DIRECTED THE DEPAR TMENT NOT TO FILE APPEALS BEFORE THE TRIBUNAL, WHERE TAX EFFECT IS BELOW RS.1 0 LAKHS, AND THIS INSTRUCTION OF THE CBDT HAS RETROSPECTIVE EFFECT AN D APPLICABLE TO PENDING CASES ALSO. THE LD.COUNSEL FOR THE ASSESSEE HAS SU BMITTED A CALCULATION SHEET ITA NO.634/RJT/2014 2 DEMONSTRATING THAT TAX EFFECT IN THE PRESENT APPEAL IS BELOW RS.10 LAKHS. CALCULATION SHEET SUBMITTED BY THE LD.COUNSEL FOR T HE ASSESSEE READS AS UNDER: ADDITION ON ACCOUNT OF TRUCK FREIGHT EXPENSES RS.30,32,875/- TAX CALCULATION IS AS UNDER: TOTAL ADDITION RS.30,32,875/- TAX @ 30% (HIGHEST RATE APPLICABLE) RS.9,09,863/- EDUCATION CESS @ 2% RS18,197/- SECONDARY & HIGHER EDUCATION CESS @1% RS.9,099/- TOTAL TAX LIABILITY RS.9,37,160/- THE LD.DR, ON THE OTHER HAND, HAS NOT DISPUTED CLA IM OF THE ASSESSEE AND APPLICATION OF THE ABOVE CBDT CIRCULAR. 4. WE FIND THAT THE REVENUE HAS FILED THE ABOVE APP EAL BEFORE THE TRIBUNAL ON 7.11.2014. AS PER THE LATEST CBDT CIRC ULAR NO.21/2015 DATED 10.12.2015, THE CBDT HAS RESTRICTED THE DEPARTMENT NOT TO FILE APPEAL WHERE TAX EFFECT IS BELOW RS.10 LAKHS BEFORE THE TRIBUNAL . ADMITTEDLY, TAX EFFECT IN APPEAL OF THE REVENUE IS BELOW RS.10 LAKHS AND THEY ARE HIT BY THE ABOVE CBDT CIRCULAR. THE LD.DR ALSO NOT DISPUTED TAX CAL CULATION MADE BY THE ASSESSEE, WHICH SHOWED THAT TOTAL TAX EFFECT IN THE PRESENT APPEAL IS BELOW THE MONETARY PRESCRIBED BY THE CBDT. FURTHER, THE ABOVE CIRCULAR HAS RETROSPECTIVE EFFECT, AND THEREFORE, APPEALS OF THE REVENUE PENDING AS ON THE DATE AND FALLING WITHIN THE MONETARY LIMIT, ARE ALS O COVERED BY THE CIRCULAR, AND THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINAB LE. IT IS, ACCORDINGLY, DISMISSED. ITA NO.634/RJT/2014 3 5. IT IS FURTHER OBSERVED THAT IF ON RE-VERIFICATIO N AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR I T FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DE PARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN LIMITATION PRESCRIBED UNDER THE LAW. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 18 TH OCTOBER, 2016 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER