The DCIT, Central Circle-1, Surat V. Soly J. Bhesania, Surat

ITA 815/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9277 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 13-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, & MANISH BORAD, AM. ITA NO.815 & 816/AHD/2012 ASST. YEAR: 2008-09 & 2009-10 DCIT, CC-1, SURAT VS SOLY J. BHESANIA, 101, NIRAJ APPT., GHOD DOD ROAD, SURAT APPELLANT RESPONDENT PAN -ACKPB 2484R ITA NO.817/AHD/2012 ASST. YEAR: 2009-10 DCIT, CC-1, SURAT VS KALPNABEN SOLY BHESANIA, 101, NIRAJ APPT., GHOD DOD ROAD, SURAT APPELLANT RESPONDENT PAN -ABSPB 2450N APPELLANT BY SHRI NARENDRA SINGH, SR. DR RESPONDENTS BY SHRI HARDIK VORA, AR DATE OF HEARING: 08/03/2016 DATE OF PRONOUNCEMENT: 8/03/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER: THESE THREE APPEALS OF REVENUE ARE DIRECTED AGAINST THREE SEPARATE ORDERS OF CIT(A)-II, AHMEDABAD OF EVEN DAT ED 2/2/2012. PENALTY ORDERS WERE FRAMED U/S 271AA OF THE INCOME- TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) OF EVEN DATE ON 21.06.2011 BY DCIT, CC-1, SURAT. SINCE ALL THESE THREE APPEALS PE RTAIN TO THE SAME ITA NOS.815 TO 817/AHD/2012 ASST. YEAR 2008-09 & 2009-10 2 GROUP OF ASSESSEES AND THE ISSUES INVOLVED IN THESE APPEALS ARE SIMILAR, THESE WERE HEARD TOGETHER AND ARE BEING DI SPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO.815AHD/2012 FOR ASST. YEAR 2008-09 FOL LOWING GROUNDS ARE RAISED:- 1) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING THE AO TO DELETE THE PENALTY LEVIED U/S.271AAA OF THE ACT OF RS.6,50,000 /- EVEN THOUGH THE ASSESSEE FAILED TO FULFILL THE CONDITIONS PRESCRIBED U/S.271AAA(2) OF THE ACT. ; 2) ON THE FACTS AND IN THE- CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND . THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 3. IN ITA NO.816/AHD/2012 FOR ASST. YEAR 2009-10 FO LLOWING GROUNDS ARE RAISED:- 1) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING THE AO TO DELETE THE PENALTY LEVIED U/S.271AAA OF THE ACT OF RS.8,00,000 /- EVEN THOUGH THE ASSESSEE FAILED TO FULFILL THE CONDITIONS PRESCRIBED U/S.271AAA(2) OF THE ACT. ; 2) ON THE FACTS AND IN THE- CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND . THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. ITA NOS.815 TO 817/AHD/2012 ASST. YEAR 2008-09 & 2009-10 3 4. IN ITA NO.817/AHD/2012 FOR ASST. YEAR 2009-10 FO LLOWING GROUNDS ARE RAISED:- 1) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN D IRECTING THE AO TO DELETE THE PENALTY LEVIED U/S.271AAA OF THE ACT OF RS.6,50,000 /- EVEN THOUGH THE ASSESSEE FAILED TO FULFILL THE CONDITIONS PRESCRIBED U/S.271AAA(2) OF THE ACT. ; 2) ON THE FACTS AND IN THE- CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 3) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND . THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. 5. THESE APPEALS WERE PRESENTED ON 13.4.2012. ON 1 0.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/201 5 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFEC T BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS . THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT , MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDI NG APPEALS ALSO. THE TAX EFFECT ON DELETION OF THE TOTAL ADDITION(S) WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEALS DESERVE TO BE DIS MISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIO NS. THE CASES DO NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING THE APPE ALS, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE, IN CASE, ON RE-VERI FICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFEC T IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INST RUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN FOU R YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEALS OF THE REVENUE AR E DISMISSED. ITA NOS.815 TO 817/AHD/2012 ASST. YEAR 2008-09 & 2009-10 4 6. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8/3/2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 8/03/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER A SST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 08/3/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 8/3/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 8/3/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: