The ITO, Ward-2(1), JAMNAGAR V. Ajaysinh Chhatrasinh Chudasama, JAMNAGAR

ITA 660/RJT/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0194 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2000-2001
• Appeal Filed On: 12-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D R CHHATRE
• Keywords: Depreciation; 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.660/RJT/2014 / ASSTT. YEAR: 2000-2001 ITO, WARD - 2(1) JAMNAGAR 361 008. VS AJAYSINH CHHATRASINH CHUDASAMA ATTRICHHAYA, OPP. RAM MANDIR JAYANT SOCIETY, JAMANAGAR PAN : ABCPC 7960 Q. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI D.R. CHHATRE, SR.DR ASSESSEE BY : SHRI CHETAN AGRAWAL, AR / DATE OF HEARING : 22/08/2016 / DATE OF PRONOUNCEMENT: 23/08/2016 $%/ O R D E R PER AMARJIT SINGH, ACCOUNTANT MEMBER: THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINS T THE ORDER OF THE LD.CIT(A), JAMANGAR DATED 12.08.2014 PASSED FOR THE ASSTT.YEAR 2000-2001. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL: 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN DELETING DISALLOWANCE OF DEPRECIATION OF RS.20,48,556/- CLAIMED AGAINST THE HIRE INCOME FROM MSV SHOWN UNDER THE HEAD OF 'INCOME FROM OTHER SOUR CES'. 2. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWIN G THE CLAIMS OF MISC. EXPENSES OF RS.6,853/-, SALARY EXPENSES OF RS .12,000/- AND TRAVELLING EXPENSES OF RS.18,500/- AS PER, THE COND ITION OF THE AGREEMENT, THE OPERATOR HAS TO BEAR ALL SUCH EXPENS ES. ITA NO.660/RJT/2014 2 3. ANY OTHER GROUND THAT THE REVENUE MAY RISE BEFORE O R DURING HEARING PROCEEDINGS BEFORE THE HON'BLE ITAT. 4. IT IS THEREFORE PRAYED THAT THE ORDER OF THE CIT(A ),JAMNAGAR MAY KINDLY BE SET-ASIDE AND THAT OF ASSESSING OFFICER B E RESTORED. 3. THE LD.COUNSEL FOR THE ASSESSEE, AT THE OUTSET, RAISED PRELIMINARY OBJECTION AS TO THE MAINTAINABILITY OF APPEAL FILED BY THE REVENUE IN VIEW OF CBDT CIRCULAR NO.21/2015 DATED 10.12.2015, WHEREBY THE BOARD HAS RESTRAINED THE DEPARTMENT NOT TO FILE APPEAL BEFORE THE TRIBUNAL WHERE THE TAX EFFECT IS BELOW RS.10 LAKHS. THE LD.COUNSEL FOR TH E ASSESSEE SUBMITTED THAT UNDISPUTEDLY, TAX EFFECT IN THE PRESENT APPEAL IS B ELOW RS.10.00 LAKHS PRESCRIBED BY THE CBDT FOR FILING THE APPEAL BEFORE THE TRIBUNAL. ON THE OTHER HAND, THE LD.DR WAS UNABLE TO CONTROVERT TO T HE SUBMISSION OF LD.COUNSEL FOR THE ASSESSEE QUA THIS PRELIMINARY ISSUE. 4. WE FIND THAT THE REVENUE HAS FILED THIS APPEAL ON 12.11.2014. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO 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.10 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRE SENT CASE, THE ASSESSED INCOME FOR THE ASSTT.YEAR 2000-01 IS RS.13,54,090/- AND CONSEQUENT TAX EFFECT AFTER GIVING EFFECT TO THE IMPUGNED ORDER OF THE LD.CIT(A), THE TAX EFFECT ON THIS IMPUGNED DELETION WOULD BE LESS THAN RS.10 LAKHS. THE LD.DR HAS NOT DISPUTED THAT THE TAX EFFECT ON THE IMPUGNED ADDITI ONS IS MORE THAN RS.10 LAKHS. THEREFORE, THE PRESENT APPEAL DOES NOT SURV IVE AND DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF THE ABOVE CBDT INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, W HILE HEARING THE APPEAL, SUCH ITA NO.660/RJT/2014 3 FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX E FFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INST RUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN LIMITATION PRESCRIBED UNDER THE LAW. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 23 RD AUGUST, 2016 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER ( AMARJIT SINGH ) ACCOUNTANT MEMBER