Income tax Officer-VI(4), Lucknow V. Shri Santosh Kumar Jaiswal, Lucknow

ITA 737/LKW/2011

• Counselvise Citation: 73723714 RSA 2011
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 28-06-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 15-12-2011
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Keywords: Retrospective amendment; Tax effect; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI MEHAR SI NGH , ACCOUNTANT MEMBER ITA NO. 737/LKW/2011 ASSESSMENT YEAR: 2008 - 09 INCOME - TAX OFFICER - VI(4) LUCKNOW V. SHRI. SANTHOSH KUMAR JAISWAL NARAIN GARDEN, BARORA HUSAIN BARI BALAGANJ, LUCKNOW PAN: AENPJ1743A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. R. K. RAM, D.R. RESPONDENT BY: SHRI. SHUBHAM RASTOGI, C.A. DATE OF HEARING: 28.06.2012 DATE OF PRONOUNCEMENT: 28.06.2012 O R D E R PER S UNIL KUMAR YADAV : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS, WHICH ARE AS UNDER: - 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN HOLDING THAT THE INCOME OF THE ASSESSEE WAS TO BE DETERMINED AS PER THE PROVISIONS OF SECTION 44AF OF THE I.T. ACT, 1961 IGNORING THE FACT THAT IN THE RETURN OF INCOME, THE ASSESSEE HAD HIMSELF GIVEN THE CODE OF HIS BUSINESS AS 0203 THAT IS 'WHOLESALER' AND DESCRIPTION AS FRUIT WHOLESALER. 2. THE CIT(A ) HAS FAILED TO APPRECIATE THAT THE ASSESSEE COULD HAVE CLAIMED THE APPLICABILITY OF SECTION 44AF TO THE FACTS OF HIS : - 2 - : CASE ONLY BY FILING A REVISED RETURN AS LAID DOWN BY THE HON'BLE SUPREME COURT IN GOETZE (INDIA) LTD. VS CIT 284 ITR 323. 3. THE CIT(A) HA S FAILED TO APPRECIATE THAT THE ASSESSEE IN AN AFFIDAVIT DATED 18.12.2010, FILED BEFORE THE AO HAS DENIED HAVING ANY BANK ACCOUNT WITH ICICI BANK LTD, IN THE CIRCUMSTANCES, CASH DEPOSITS DISCOVERED AFTER INQUIRY WITH ICICI BANK, LUCKNOW CAN ONLY BE CONSIDE RED TO BE THE UNEXPLAINED INCOME OF THE ASSESSEE, IN THE ABSENCE OF ANY DOCUMENT TO PROVE THAT THEY CONSTITUTED HIS BUSINESS TURNOVER. 2 . AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE HAS S UBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LE SS THAN THE PRESCRIBED MONETARY LIMIT, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE INSTRUCTIONS ISSUED BY C.B.D.T. 3 . THE LEARNED D. R. DID NOT CONTROVERT THE ABOVE FACT. 4 . IT IS NOTICED THAT SECTION 268A OF THE ACT HAS BEEN INSERTED BY THE FINANCE ACT, 2008 W ITH RETROSPECTIVE EFFECT FROM 1.4.1999 . THE PROVISIONS CONTAINED IN SECTION 268A READ AS UNDER: - 268A. (1) THE BOARD MAY, FROM TIME TO TIME, ISSUE ORDERS, INSTRUCTIONS OR DIRECTIONS TO OTHER INCOME - TAX AUTHORITIES, FIX ING SUCH MONETARY LIMITS AS IT MAY DEEM FIT, FOR THE PURPOSE OF REGULATING FILING OF APPEAL OR APPLICATION FOR REFERENCE BY ANY INCOME - TAX AUTHORITY UNDER THE PROVISIONS OF THIS CHAPTER. (2) WHERE, IN PURSUANCE OF THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISS UED UNDER SUB - SECTION (1), AN INCOME - TAX AUTHORITY HAS NOT FILED ANY APPEAL OR APPLICATION FOR REFERENCE ON ANY ISSUE IN THE CASE OF AN ASSESSEE FOR ANY ASSESSMENT YEAR, IT SHALL NOT PRECLUDE SUCH AUTHORITY FROM : - 3 - : FILING AN APPEAL OR APPLICATION FOR REFERENC E ON THE SAME ISSUE IN THE CASE OF ( A ) THE SAME ASSESSEE FOR ANY OTHER ASSESSMENT YEAR; OR ( B ) ANY OTHER ASSESSEE FOR THE SAME OR ANY OTHER ASSESSMENT YEAR. (3) NOTWITHSTANDING THAT NO APPEAL OR APPLICATION FOR REFERENCE HAS BEEN FILED BY AN INCOME - TAX AUTHORITY PURSUANT TO THE ORDERS OR INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1), IT SHALL NOT BE LAWFUL FOR AN ASSESSEE, BEING A PARTY IN ANY APPEAL OR REFERENCE, TO CONTEND THAT THE INCOME - TAX AUTHORITY HAS ACQUIESCED IN THE DECISION ON THE D ISPUTED ISSUE BY NOT FILING AN APPEAL OR APPLICATION FOR REFERENCE IN ANY CASE. (4) THE APPELLATE TRIBUNAL OR COURT, HEARING SUCH APPEAL OR REFERENCE, SHALL HAVE REGARD TO THE ORDERS, INSTRUCTIONS OR DIRECTIONS ISSUED UNDER SUB - SECTION (1) AND THE CIRCUMST ANCES UNDER WHICH SUCH APPEAL OR APPLICATION FOR REFERENCE WAS FILED OR NOT FILED IN RESPECT OF ANY CASE. (5) EVERY ORDER, INSTRUCTION OR DIRECTION WHICH HAS BEEN ISSUED BY THE BOARD FIXING MONETARY LIMITS FOR FILING AN APPEAL OR APPLICATION FOR REFERENCE SHALL BE DEEMED TO HAVE BEEN ISSUED UNDER SUB - SECTION (1) AND THE PROVISIONS OF SUB - SECTIONS (2), (3) AND (4) SHALL APPLY ACCORDINGLY. ] 5 . IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTION OR DIRECTIONS ISSUED TO THE I NCOME - TAX A UTHORITIES ARE BINDING ON TH OSE AUTHORITIES, THEREFORE, THE DEPARTMENT OUGHT NOT TO HAVE FILED THIS APPEAL IN VIEW OF THE PROVISIONS OF SECTION 268A OF THE ACT , SINCE THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN : - 4 - : THE AMOUNT PRESC RIBED FOR NOT FILING THE APPEAL. ACCORDINGLY, THIS A PPEAL IS DISMISSED. 6 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.6.2012. S D/ - S D/ - [ MEHAR SINGH ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29.6.2012 JJ: 2806 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR