The ACIT, (OSD)Circle-8, Ahmedabad V. Sayaji Industries Ltd., Ahmedabad

ITA 739/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1676 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Retrospective amendment; Tax effect

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.739/AHD/2012 / ASSTT. YEAR: 2008-2009 ACIT (OSD) CIR.8, AHMEDABAD. VS SAYAJI INDUSTRIES LTD. P.O. KATHWADA AHMEDABAD 382 430. PAN : AADCS 0861 R ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI JAMES KURIAN, SR.DR ASSESSEE BY : NONE / DATE OF HEARING : 02/05/2016 / DATE OF PRONOUNCEMENT: 12/05/2016 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL AGAINST THE ORDER OF LD.CO MMISSIONER INCOME-TAX (APPEALS)-XIV, AHMEDABAD DATED 10.1.2012 PASSED FOR THE ASSTT.YEAR 2008-09. 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT (A) HAS ERRED IN ALLOWING TECHNICAL KNOWHOW FEES OF RS.14,69,000/- A ND ALLOWANCE DEPRECIATION OF FLAT AT 20% INSTEAD OF 5% OF RS.12, 52,004/-. ITA NO.739/AHD/2012 2 3. AT THE OUTSET, AFTER GOING THROUGH THE GROUNDS O F APPEAL AND THE TOTAL RELIEF GRANTED BY THE LD.CIT(A) TO THE ASSESS EE, A QUERY FROM BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPE AL FILED BY THE REVENUE IN VIEW OF RECENT CBDT INSTRUCTION NO.21/2015 RESTR ICTING THE FILLING OF THE APPEAL BY THE REVENUE WHERE THE TAX EFFECT IS B ELOW RS.10 LAKHS, THE LD.DR DID NOT DISPUTE THE SAME AND SUBMITTED TH AT THE ISSUE MAY BE LEFT TO THE AO TO DECIDE WHETHER THE TAX EFFECT IS BELOW RS.10 LAKHS AS STIPULATED IN THE INSTRUCTIONS OF THE CBDT. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 30.3.2012. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEAR ING 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 EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 L AKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT , MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEAL S ALSO. IN THE PRESENT CASE, TOTAL RELIEF GRANTED BY THE LD.CIT(A) BY DELE TION OF RS.11,01,750/- TOWARDS TEHNICAL KNOWHOW PLUS DEPRECIATION OF RS.12 ,52,004/- IS RS.23,53,754/- WHICH WAS CHALLENGED BY THE REVENUE IN THE PRESENT APPEAL. IN ACCORDANCE WITH THE ABOVE CBDT CIRCULAR THE TAX EFFECT ON THE IMPUGNED DELETION MADE BY THE LD.CIT(A) WOULD B E LESS THAN RS.10 LAKHS, AND THEREFORE, THE PRESENT APPEAL OF THE REV ENUE DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. FURTHER, THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINC E, WHILE HEARING THE APPEALS, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO TH E NOTICE THAT THE TAX ITA NO.739/AHD/2012 3 EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCE PTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, TH E APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 12 TH MAY, 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER