The ITO, (Inter. Taxa.), GANDHIDHAM V. M/s B. Devchand & Sons Shipping Pvt. Ltd., GANDHIDHAM

ITA 727/RJT/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0180 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 11-12-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHHATRE
• Assessee Lawyers: MANISH TALREJA
• Keywords: Retrospective amendment; Tax effect
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 271(1)(c); 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

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.727/RJT/2014 / ASSTT. YEAR: 2010-2011 M/S.B. DEVCHAND & SONS SHIPPING PVT. LTD. 103/104 GOLD COIN PLOT NO.321, WARD-12/B GANDHIDHAM 370 201. VS ITO (INTERNATIONAL TAXATION) GANDHIDHAM. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI D.R. CHHATRE, SR.DR ASSESSEE BY : SHRI MANISH TALREJA / DATE OF HEARING : 23/08/2016 / DATE OF PRONOUNCEMENT: 24/08/2016 $%/ O R D E R PER BENCH : THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINS T THE ORDER OF THE LD.CIT(A)-2,GANDHINAGAR, AHMEDABAD DATED 02.09.2014 PASSED FOR THE ASSTT.YEAR 2010-2011. 2. ONLY GRIEVANCE OF THE REVENUE IN THIS APPEAL IS THAT THE LD.CIT(A) HAS ERRED IN DELETING PENALTY IMPOSED BY THE AO UNDER S ECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. ITA NO.727/RJT/2014 2 3. THE LD.COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT APPEAL OF THE REVENUE IS NOT MAINTAINABLE AS THE SAME IS FILE D IN VIOLATION TO CBDT CIRCULAR NO.21/2015 DATED 10.12.2015, WHEREBY THE B OARD HAS RESTRAINED THE DEPARTMENT NOT TO FILE APPEAL BEFORE THE TRIBUNAL W HERE THE TAX EFFECT IS BELOW RS.10 LAKHS. THE LD.COUNSEL FOR THE 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 ON THIS PRELIMINARY ISS UE. 4. WE FIND THAT THE REVENUE HAS FILED THIS APPEAL ON 11.12.2014. 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, THE ASSESSED INCOME/PENALTY DEMANDED FOR THE ASSTT.YEAR 2010-11 IS RS.5,00,000/- , AND THEREFORE, BELOW STATUTORY LIMIT PRESCRIBED BY THE CBDT BY VIRTUE OF THE ABOVE CIRCULAR FOR FILING OF THE APPEAL BEFORE THE TRIBUNAL. THE LD.DR HAS NOT DISPUTED SUBMISSIONS OF THE LD.COUNSEL FOR THE ASSE SSEE IN THIS BEHALF. THEREFORE, THE PRESENT APPEAL DOES NOT SURVIVE AND DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF THE ABOVE CBDT INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPE AL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFI CATION 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 ITA NO.727/RJT/2014 3 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 24 TH AUGUST, 2016 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER