A.C.I.T. Circle-1, Gwalior V. Shri Hari Vallabh Shivhare, Gwalior

ITA 73/AGR/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3344 (ITAT-AGRA)
• Duration Of Justice: 3 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 27-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBE R AND SHRI DR. MITHA LAL MEENA, ACCOUNTANT MEMBER ITA NO. 73/AGR/2015 ASSESSMENT YEAR: 2011-12 A.C.I.T., CIRCLE - 1, GWALIOR. (APPELLANT) VS. SHRI HARI VALLABH SHIVHARE, GRAM MOHNA, A.B. ROAD, POST OFFICE-MOHNA, GWALIOR. PAN: AZBPS8726R (RESPONDENT) ITA NO. 76/AGR/2015 ASSESSMENT YEAR: 2011-12 SHRI HARI VALLABH SHIVHARE, GRAM MOHNA, A.B. ROAD, POST OFFICE-MOHNA, GWALIOR. (APPELLANT) VS. A.C.I.T., CIRCLE - 1, GWALIOR. (RESPONDENT) REVENUE BY SHRI WASEEM ARSHAD, SR. DR ASSESSEE BY NONE ORDER PER SUDHANSHU SRIVASTAVA, J.M.: THESE CROSS APPEALS ARE FILED BY THE REVENUE AND THE ASSESSEE AGAINST THE ORDER DATED 17.12.2014 PASSED BY LEARNED CIT(A), GW ALIOR FOR THE ASSESSMENT YEAR 2011-12. DATE OF HEARING 19.02.2019 DATE OF PRONOUNCEMENT 19.02. 2019 ITA NOS. 73 & 76/AGR/2015 2 2. DURING THE COURSE OF HEARING, THE LD. SR. DR SUB MITTED THAT THERE IS NO DOUBT THAT TAX EFFECT INVOLVED IN THE APPEAL IS LES S THAN RS.20 LAKHS, THUS, BOUND BY THE DEPARTMENTAL INSTRUCTION, THE APPEAL HAS TO BE WITHDRAWN. HOWEVER, ATTENTION WAS INVITED TO PARA 10 OF THE CIRCULAR NO . 3/2018, DATED 11 TH JULY, 2018, WHICH HAS BEEN MODIFIED BY CIRCULAR DATED 20T H AUGUST, 2018 AND IN TERMS OF THE SAID MODIFICATION THE DEPARTMENTAL REP RESENTATIVES MADE A PRAYER THAT PERMISSION TO PRAY FOR RECALL OF THE ORDER MAY BE GRANTED IN CASE ANY OF THE CONDITIONS IN THE REPORTS MADE AVAILABLE BY THE A.O . SUBSEQUENTLY, SHOW THAT THE ISSUES WERE REQUIRED TO BE CONTESTED. THE MODIFIED PARA IS EXTRACTED HEREUNDER: 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING I SSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT : (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVI SIONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHERE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN I NCOME/UNDISCLOSED FOREIGN ASSETS (INCLUDING FINANCIAL ASSETS)/ UNDISCLOSED FO REIGN BANK ACCOUNT. (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVE D FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ ED/ DRI/ SFIO/ DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). ITA NOS. 73 & 76/AGR/2015 3 (F) CASES WHERE PROSECUTION HAS BEEN FILED BY THE DEPARTMENT AND IS PENDING IN THE COURT. 3. GOING BY THE PRESCRIPTION OF CIRCULAR NO. 3/2018 , DATED 11TH JULY, 2018, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HAVE EIT HER NOT FILED THE INSTANT APPEAL BEFORE THE TRIBUNAL OR WITHDRAWN THE SAME AS THE TAX EFFECT IN THE APPEAL IS ADMITTEDLY LESS THAN THE PRESCRIBED LIMIT, I.E., RS. 20,00,000/- FOR NOT FILING THE APPEALS. ACCORDINGLY, WE DISMISS THE APPEAL FILED B Y THE REVENUE WITHOUT GOING INTO MERITS OF THE CASE. HOWEVER, IT IS MADE CLEAR THAT THE DEPARTMENT IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION, IF THE T AX EFFECT IS FOUND TO BE MORE THAN THE PRESCRIBED LIMIT OF RS.20,00,000/- OR ANY OF TH E CONDITIONS ETC., AS AVAILABLE IN THE AMENDMENT CARRIED OUT IN PARA 10 OF CIRCULAR NO. 3/2018, DATED 20.08.2018, IS MADE OUT. ACCORDINGLY, THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS SO ORDERED ACCORDINGLY. 4. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE TO RE PRESENT THE APPEALS. HOWEVER, AN ADJOURNMENT APPLICATION SIGNED BY ONE S HRI PRAMOD KUMAR GUPTA IN THE STATUS OF AUTHORIZED REPRESENTATIVE OF ASSES SEE, WAS PLACED BEFORE THE BENCH. WE, HOWEVER, FIND THAT THE SAID APPLICATION DOES NOT HAVE EVEN A WHISPER OF ANY GROUND FOR ADJOURNMENT NOR DOES THE RECORD C ONTAIN ANY POWER OF ATTORNEY/AUTHORITY IN THE NAME OF PRAMOD KUMAR GUPT A WHO MOVED THE ADJOURNMENT APPLICATION. THEREFORE, THE ADJOURNMENT SOUGHT IS REFUSED. ON EARLIER OCCASIONS ALSO, THE ASSESSEE HAS NOT BEEN D ILIGENT TO PROSECUTE ITS APPEAL. THEREFORE, IT CAN BE SAFELY INFERRED THAT THE ASSES SEE IS NOT SERIOUS IN PURSUING ITS APPEAL. IN THE CIRCUMSTANCES, THE ONLY ALTERNAT IVE LEFT WITH US IS TO DISMISS THE ITA NOS. 73 & 76/AGR/2015 4 APPEAL OF THE ASSESSEE IN LIMINE. SUPPORT IS DRAWN FROM THE ORDER OF TRIBUNAL IN CIT VS. MULTI PLAN INDIA (P) LTD., 38 ITD 320 (DEL. ) AND OF M.P. HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT, 223 ITR 48 0 (MP). 5. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A ND ASSESSEE ARE DISMISSED, AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 19.02.2019. SD/- SD/- (DR. MITHA LAL MEENA) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19.02.2019 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA