The ITO, Ward-4(3), Ahmedabad V. M/s. Hardik Fintrade Pvt.Ltd., Ahmedabad

ITA 809/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5866 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-07-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 04-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA
• Keywords: Audit objection; Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' [BEFORE SHRI MAHAVIR SINGH,JM & SHRI A N PAHUJA,AM] ITA NO.809/AHD/2008 (AY:-2004-05) INCOME-TAX OFFICER, WARD- 4(3), AHMEDABAD V/S M/S HARDIK FINTRADE PVT. LTD.,227,SHRI RAM CLOTH MARKET,OPP. MANILAL MANSION,,REVDI BAZAR, AHMEDABAD [PAN:AAACH2867F] [APPELLANT] [RESPONDENT] REVENUE BY :- SHRI K MADHUSUDAN, DR ASSESSEE BY:- SHRI S.N.DIVATIA, AR O R D E R A.N.PAHUJA: THIS APPEAL BY THE REVENUE AGAINST AN ORDER DATE D 28.12.2007 OF THE LD. CIT(APPEALS)-VIII, AHMEDABAD FOR THE AY 2004-05 RAISES FIVE GROUNDS RELATING TO CLAIM FOR B USINESS LOSS- RS.1,53,662/-,TELEPHONE EXPENSES-RS.33,245/- &BUSIN ESS PROMOTION EXPENSES-RS.50,250/-. 2. AT THE OUTSET, THE LD. AR ON BEHALF OF THE ASSESSEE POINTED OUT THAT THE TAX EFFECT IN THIS APPEAL FIL ED BY THE REVENUE IS BELOW THE LIMIT OF RS.2 LAKHS STIPULATED BY THE CB DT IN THEIR INSTRUCTION FOR FILING THE APPEALS. THE LD. DR APPEARING BEFORE US COULD NOT POINT OUT THAT THE CASE FALLS WITHIN ANY OF THE FOLLOWING EXCEPTIONS IN CBDT INSTRUCTION NO.279/MISC.-64/05-I TJ DATED 24.10.2005 OR EARLIER INSTRUCTION NO. 1979 DATED 27 .3.2000 AS CLARIFIED VIDE SUBSEQUENT INSTRUCTION NO. 1985 DATE D 29.6.2000 OR EVEN IN LATEST INSTRUCTION NO. 5 OF 2008 DATED 15.5 .2008: (A) WHERE THE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, (B) WHERE THE BOARD'S ORDER, NOTIFICATION, INSTRUCT ION OR CIRCULAR IS THE SUBJECT-MATTER OF AN ADVERSE ORDER, ITA NO.809/AHD/2008 2 (C) WHERE PROSECUTION PROCEEDINGS ARE CONTEMPLATED AGAINST THE ASSESSEE, AND (D) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF THE ACT IS UNDER CHALLENGE. 2.1 RECENTLY, HONBLE BOMBAY HIGH COURT IN TH EIR DECISION IN THE CASE OF CIT VS. MADHUKAR K INAMDAR(HUF),229 CTR(BOM.)77 WHILE R EFERRING TO A CIRCULAR DATED 5.6.2007 ISSUED BY THE CBDT, THE RELEVANT P ROVISIONS OF SEC. 268A OF THE ACT AND THEIR OWN DECISION IN THE CASE OF CIT VS. P OLYCOTT CORPORATION,20 DTR(BOM.)16 HELD THAT INSTRUCTION NO. 5 OF 2008 DA TED 15.5.2008 IS APPLICABLE EVEN TO MATTERS FILED BEFORE THAT DATE I.E. PENDIN G BEFORE THE COURT. THE INSTRUCTION NO. 5 OF 2008 DATED 15.5.2008 SEEMS TO LIMIT THE ISSUES IN SO FAR AS THE SAME QUESTION OF LAW OR RECURRING ISSUE EXCEPT TO THE EXTENT PROVIDED IN PARA.5. ON A PROPER READING OF PARA.5 OF THE INSTRU CTIONS IT WOULD BE CLEAR THAT A DUTY IS CAST ON THE ASSESSING OFFICER THAT EVEN IF THE DISPUTED QUESTIONS ARISE FOR MORE THAN ONE ASSESSMENT YEAR THEN AN APPEAL SHOULD BE FILED ONLY IN RESPECT OF THOSE YEARS WHERE THE MONETARY LIMIT EXCEEDS THE LI MITS AS SPECIFIED IN PARA.3 OF THE INSTRUCTIONS, HONBLE HIGH COURT OBSERVED. 3. IN VIEW OF THE FOREGOING AND IN THE LIGHT OF AFORES AID INSTRUCTION DATED 24.10.2005 OF THE CBDT AND DECISION DATED 5.8.2008 OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. CONCORD PHARMACEU TICALS IN TAX APPEAL NOS. 1402 TO 1405 OF 2007 AS ALSO CONSISTENT VIEW TAK EN BY VARIOUS HIGH COURTS IN THE CASE OF CIT VS. MADHUKAR K INAMDAR(H UF),229 CTR(BOM.)77, CIT VS. POLYCOTT CORPORATION,20 DTR(BOM.)16,CIT VS. CHHAJER PACKAGING AND PLASTICS P.LTD., 300 ITR 180(BOM.),CIT VS. CAMC O COLOUR CO,254 ITR 565(BOM.), CIT VS. ZOEB Y TOPIWALA,284 ITR 379 (BOM), & CIT VS. S.ANNAMALAI,258 ITR 675(MADRAS) AN D HONBLE DELHI HIGH COURT IN THEIR ORDER DATED 1.8.2007 IN I TA NO. 683/2007 IN THE CASE OF CIT VS. MANISH BHAMBRI, THESE APPEALS CAN NOT BE ENTERTAINED. ITA NO.809/AHD/2008 3 4. RESPECTFULLY FOLLOWING THE AFORESAID DECISI ONS OF THE HON'BLE JURISDICTIONAL HIGH COURT AND OTHER HIGH COURTS, TH IS APPEAL BY THE REVENUE IS DISMISSED, IN LIMINE. 5. IN THE RESULT, APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 1-7-2010 SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (A N PAHUJA) ACCOUNTANT MEMBER DATE : 1-7-2010 COPY OF THE ORDER FORWARDED TO : 1. M/S HARDIK FINTRADE PVT. LTD.,227,SHRI RAM CLOTH MARKET, OPP. MANILAL MANSION,CRONSS LANE,RAVDI BAZAR,AHMEDA BAD 2. ITO, WARD-4(3),AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-VIII, AHMEDABAD 5. THE DR, B BENCH,ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD