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ITA 75/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0706 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 21-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: VIJAY RANJAN; IRA KAPOOR ARS
• Keywords: Retrospective amendment; Tax effect
• Section: 153A; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT AND MS. MADHUMITA ROY, JUDICIAL MEMBER M.A. NO.75/AHD/2019 (IN IT(SS)A NO. 426/AHD/2017) (ASSESSMENT YEAR : 2012-13) THE JCIT(OSD), CENTRAL CIRCLE 1, BARODA. VS. SHRI OMPRAKASH K BENGANI, A-23/24, YOGESHWAR SOCEITY, VIBHAG 1, BEHIND JNK APARTMENT, HIGH TENSION ROAD, SUBHANPURA, BARODA. [PAN NO. AALPB 5860 E] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI VIJAY RANJAN & IRA KAPOOR, ARS RESPONDENT BY : SHRI L. P. JAIN, SR. D.R. DATE OF HEARING 05.04.2019 DATE OF PRONOUNCEMENT 02.07.2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT MISCELLANEOUS APPLICATION IS DIRECTED A T THE INSTANCE OF THE REVENUE SEEKING RESTORATION OF TRIBUNALS ORDER DATED 27.07 .2018 IN IT(SS)A NO.426/AHD/2017 (REVENUES APPEAL) FOR ASSESSMENT YEAR 2012-13 WHER EBY AND WHEREUNDER THE MATTER WAS DISMISSED DUE TO LOW TAX EFFECT. 2. IN THE MISC. APPLICATION THE REVENUE HAS CONTEND ED THAT IMPUGNED ORDER OF THE TRIBUNAL IS LIABLE TO BE RECALLED IN VIEW OF THE FA CT THAT THE ISSUE INVOLVED IN THE APPEAL FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN CL AUSE 10(A) OF THE CBDT CIRCULAR NO.3 - 2 - MA N O.75/AHD/2019(IN IT(SS)A NO.426/A/17) THE JCIT(OSD) VS. SHRI OMPRAKASH K BENGANI ASST.YEAR 2012-13 OF 2018 DATED 11.7.2018. THE RELEVANT CONTENTIONS O F THE REVENUE PLEADED IN THE MA READS AS UNDER: 2. AGGRIEVED WITH THE ASSESSMENT ORDER, THE ASSES SEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A)-12, AHMEDABAD HAS QUASHED THE ASSESSMENT ORDER BY RELYING UPON THE DECISION OF GU JARAT HC IN SAUMYA CONSTRUCTION PVT LTD 81 TAXMANN.COM 292 AND ITAT, A HMEDABAD IN VIJAY KUMAR D AGARWAL V/S DCIT IN IT(SS)A NO.153 TO 156/AHD/201 2 DATED 29.04.2016 ON THE FOLLOWING GROUNDS:- (G) AS ON THE DATE OF SEARCH, APPELLANT HAD ALREADY FILED ORIGINAL RETURNS OF INCOME AND TIME LIMIT FOR ISSUANCE OF NOTICE U/S 14 3(2) OF THE ACT HAD ALREADY EXPIRED WHICH MEANS THAT PROCEEDINGS FOR TH ESE ALL ASSESSMENT YEARS WERE CLOSED AND ATTAINED FINALITY. WHILE MAKI NG DISALLOWANCE U/S 14A OF THE ACT, AO HAS NOT REFERRED TO ANY INCRIMINATIN G MATERIAL FOUND DURING THE COURSE OF SEARCH WHICH CAN JUSTIFY SUCH ADDITIO N. (H) THE AO HAS MADE ADDITIONS ON THE BASIS OF RETUR N OF INCOME ALREADY FILED PRIOR TO THE DATE OF SEARCH. ADDITIONS COULD BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING SEARCH. 3. THE DECISION OF THE LD. CIT(A) WAS NOT ACCEPTAB LE AND HENCE DEPARTMENT FILED FURTHER APPEAL BEFORE THE HON'BLE ITAT VIDE I T(SS)A NO. 426/AHD/2017 ON 06.12.2017 ON MERITS AS WELL AS CHALLENGING THE GRO UNDS MENTIONED IN PARA 2.. FURTHER VIDE CBDT'S CIRCULAR DATED 11.07.2018, THE HON'BLE ITAT DISMISSED REVENUE'S APPEAL INVOLVING TAX EFFECT OF LESS THAN RS. 20 LAKHS AS WITHDRAWN TAKING INTO CONSIDERATION THAT THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT AND ARE APPLICABLE ON PENDING APPEALS ALSO. THE MERITS OF THE CASE AS WELL AS THE LEGAL ISSUE HAS NOT BEEN TAKEN INTO CONSIDERATION.. HOWEVER, THE HON'BLE ITAT HAS ALSO GIVEN LIBERTY THAT IN CAS E ON RE VERIFICATION AT THE END OF THE A.O., REVENUE'S CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER.. 4. ON VERIFICATION OF THE CASE, IT IS OBSERVED THA T THE HON'BLE ITAT HAS DISMISSED THE DEPARTMENT'S APPEAL TAKING INTO CONSI DERATION ONLY THE TAX EFFECT, WHICH IS BELOW THE LIMIT . - 3 - MA N O.75/AHD/2019(IN IT(SS)A NO.426/A/17) THE JCIT(OSD) VS. SHRI OMPRAKASH K BENGANI ASST.YEAR 2012-13 FURTHER, IT MUST BE MENTIONED THAT AS PER THE WEBSI TE OF HON'BLE SUPREME COURT OF INDIA, AN SLP FILED BY THE DEPARTMENT AGAI NST THE DECISION OF GUJARAT HIGH COURT IN CIT VS. SAUMYA CONSTRUCTION PVT. LTD. HAS BEEN 'DISPOSED AS DISMISSED' VIDE ORDER DATED J4.04.2018 OF HON'BLE S UPREME COURT OF INDIA. IN THIS REGARD, IT IS SUBMITTED THAT THE SLP HAS BEETRCNSI5 5SED AS 'DISMISSED' BY THE HON'BLE COURT. HOWEVER, THERE IS NO SPEAKING ORDER AS SUCH AS TO WHY IT HAS BEEN DISMISSED. ALSO, THERE IS NO OBSERVATION OF THE COU RT WITH REGARD TO INTERPRETATION AND SCOPE OF SECTION 153A OF THE ACT. THEREFORE, TH E LEGAL QUESTION REGARDING INTERPRETATION OF SCOPE OF SECTION 153A OF THE ACT IS STILL OPEN AS THE INTERPRETATION THAT ADDITIONS MADE WITHOUT ANY INCRIMINATING MATER IAL IN COMPLETE AND UNABATED ASSESSMENTS ARE NOT STIPULATED UNDER THE SECTION CL EARLY LIMITS SECTION 153A OF THE ACT AND GIVES IT AN INTERPRETATION NOT ORIGINALLY I NCLUDED IN THE PROVISION WHEN IT WAS INSERTED. 3. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF RECALL OF THE IMPUGNED ORDER AS PRAYED BY THE REVENUE. WE FIND THAT THE TRIBUNAL HA S DISMISSED THE APPEAL OF THE REVENUE ON THE GROUND THAT TAX EFFECT IN THAT APPEA L IS BELOW RS.20 LAKHS, AND THEREFORE, THE SAME IS NOT ADMISSIBLE IN VIEW OF THE RECENT CB DT CIRCULAR NO.3 OF 2018. IT IS NOT DISPUTED BY THE REVENUE THAT THE TAX EFFECT INVOLVE D ON THE DISPUTED ADDITION IS LESS THAN RS.20 LAKHS. THE CASE OF THE REVENUE IS THAT ITS AP PEAL FALLS WITHIN THE SCOPE OF EXCEPTIONS PROVIDED IN CLAUSE 10(A) OF THE ABOVE CI RCULAR, THEREFORE, IT HAS TO BE DECIDED ON MERIT EVEN THOUGH TAX EFFECT INVOLVED THEREIN IS BELOW TAXABLE LIMIT PRESCRIBED BY THE CBDT. WE FIND FROM THE CIT(A)'S ORDER THAT THE CIT( A) HAS ALLOWED THE APPEAL OF THE ASSESSEE WHILE CONSIDERING VARIOUS CASE LAWS INCLUD ING THE DECISION IN THE CASE OF SAUMYA CONSTRUCTION 387 ITR 529 (GUJ). REVENUE IN M A ITSELF HAS CONTENDED THAT SLP AGAINST DECISION OF HON'BLE GUJARAT HIGH COURT IN T HE CASE OF SAUMYA CONSTRUCTION HAS BEEN DISMISSED BY THE HON'BLE SUPREME COURT VIDE OR DER DATED 24.4.2018. THERE IS NOTHING BEFORE US TO SHOW THAT CONSTITUTIONAL VALID ITY OF THE PROVISIONS OF AN ACT OR RULE IS UNDER CHALLENGE ON THE ISSUE, AS STIPULATED IN C LAUSE 10(A) OF THE ABOVE CBDT CIRCULAR. IN OUR VIEW, THERE IS NO JUSTIFICATION OR MERIT IN THE PLEA OF THE REVENUE FOR RECALL OF THE - 4 - MA N O.75/AHD/2019(IN IT(SS)A NO.426/A/17) THE JCIT(OSD) VS. SHRI OMPRAKASH K BENGANI ASST.YEAR 2012-13 IMPUGNED ORDER OF THE TRIBUNAL. MA OF THE REVENUE B EING DEVOID OF ANY MERIT, STANDS REJECTED. 4. IN THE RESULT, MISC. APPLICATION OF THE REVENU E IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 02/07/2019 SD/- SD/- ( PRAMOD KUMAR ) ( MS. MADHUMITA ROY ) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD; DATED 02/07/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A). 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 04.06.2019. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06/06/2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S .. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER