The ITO, Ward-1, GANDHIDHAM V. Shri Jitubha Hamirji Jadeja, GANDHIDHAM

ITA 704/RJT/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0192 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 05-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D R CHHATRE
• Assessee Lawyers: DM RINDANI
• 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.704/RJT/2014 / ASSTT. YEAR: 2010-2011 ITO, WARD - 1 GANDHIDHAM. VS SHRI JITUBHA HAMIRJI JADEJA C/O. M/S.BHAVANI ROADWAYS 10, TRANSPORT NAGAR GANDHIDHAM-KUTCH. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI D.R. CHHATRE, SR.DR ASSESSEE BY : SHRI D.M. RINDANI, 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)-II, RAJKOT DATED 10.9.2014 PASSED FOR THE ASSTT.YEAR 2010-11. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL: 1. THE LD. CIT (A) HAS ERRED IN RESTRICTING, WITHO UT ANY COGENT REASON, THE ADDITION MADE BY AO ON ACCOUNT OF DISALLOWANCE OF DRIVER & CLEANER SALARY EXPENSES, FROM 10% TO 5%. 2. THE LD. CIT (A) HAS ERRED IN RESTRICTING, WITHOU T ANY COGENT REASON, THE ADDITION MADE BY AO ON ACCOUNT OF DISALLOWANCE OF TRIP EXPENSE, FROM 10% TO 5%. 3. THE LD. CIT (A) HAS ERRED RESTRICTING, WITHOUT A NY COGENT REASON, THE ADDITION MADE BY AO ON ACCOUNT OF DISALLOWANCE OF R EPAIR & MAINTENANCE EXPENSES, FROM 20% TO 10%. ITA NO.704/RJT/2014 2 4. THE LD. CIT (A) HAS ERRED RESTRICTING, WITHOUT ANY COGENT REASON, THE ADDITION MADE BY AO ON ACCOUNT OF DISALLOWANCE OF DIESEL EXPENSES, FROM 5% TO 205%. 5. THE LD. CIT (A) HAS ERRED DELETING ADDITION MADE BY AO ON ACCOUNT OF DISALLOWANCE OF INTEREST EXPENSES WHEN NO TAX DE DUCTION AT SOURCE AS APPLICABLE AS PER INCOME TAX ACT WAS MADE BY ASS ESSEE. 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. ASSESSEE HAS FILED A STATEMENT SHOWING COMPUTATION OF INCOME AFTER GIVING EFFECT TO THE CIT(A)S ORDER, WHICH READS AS UNDER: PARTICULARS AMOUNTS (RS.) TAX ON ASSESSED INCOME AS PER ORDER U/S.143(3) (AS PER CALCULATION SHEET GIVEN BY DEPT.) (A) 10,27,675/- LESS: TAX ON AMOUNT AS REDUCED BY THE AMOUNT IN RESPECT OF WHICH APPEAL IS FILED 5,64,220/- TOTAL ASSESSED INCOME 35,65,810/- LESS: AMOUNT IN RESPECT OF WHICH APPEAL IS FILED 15,25,074/- 20,40,736 TAX ON RS.16,60,252 (B) 5,64,220/- TAX EFFECT (A-B) 4,63,455/- TO THIS, THE LD.DR WAS UNABLE TO CONTROVERT TO THE SUBMISSIONS OF LD.COUNSEL FOR THE ASSESSEE ON THIS PRELIMINARY ISSUE. ITA NO.704/RJT/2014 3 4. WE FIND THAT THE REVENUE HAS FILED THIS APPEAL ON 5.12.2014. 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, AS PER THE DETAILS SUBMITTED BY THE ASSESSEE SHOWING COMPUTATION OF IN COME 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. CALCULATION SHEET FILED BY THE ASSESSEE HAS NOT BEEN DISPUTED BY THE LD.DR. THEREFORE, THE PRESENT APPEAL DOES NOT SURVIVE AND DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF THE ABOVE CBDT INSTRUCTION S. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END O F THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIB ERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN LIMITATION PRESCRIBED UNDER THE LAW. IN VIEW OF TH E 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 AHMEDABAD; DATED 23/08/2016