The ITO, Ward-1(1), Ahmedabad V. AMG Business Solution Pvt.Ltd., Ahmedabad

ITA 877/AHD/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0619 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 09-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 20-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3); 115JB

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI S.S. GODARA, JM, AND SHRI MANISH BORAD, AM ./ITA.NO.877/AHD/2012 ( / ASSTT YEAR : 2007-08) ITO, WARD-1(1), AHMEDABAD. VS. M/S AMG BUSINESS SOLUTIONS PVT. LTD., 2 ND FLOOR, COMMERCE HOUSE-II, OPP. IOCL, PETROL PUMP, SATYA MARG, BODAKDEV, AHMEDABAD. PAN AAFCA 8365P (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI S. L. CHANDEL, SR. DR / RESPONDENT BY: NONE / DATE OF HEARING 9/9/2016 /DATE OF PRONOUNCEMENT 9/09/2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THIS APPEAL OF REVENUE IS DIRECTED AGAINST THE OR DER OF LD.CIT(A)-6, AHMEDABAD , DATED 7.3.2012 PASSED AGAINST THE ORDER U/S 143(3) OF THE IT ACT, 1961(IN SHORT THE ACT) DT.15.12.2009 FRAMED B Y ITO, WD- 1(1),AHMEDABAD. 2. GRIEVANCES OF THE REVENUE, IN THIS APPEAL ARE AS UNDER :- 1. THE ID. CIT (A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE ASSESSEE'S CLAIM OF DEDUCTION U/S 10A DESPITE THE FACT THAT TH E ASSESSEE HAD INFRINGED ITA NO. 877/AHD/2012 ASST. YEAR 2007-08 2 A CONDITION SUBJECT TO WHICH STPI APPROVAL WAS GRAN TED BY THE DIRECTOR, STPI, MINISTRY OF COMMERCE & IT. 2. THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT BOOK PROFIT U/S 115JB CANNOT BE RECALCULATED OWING TO CHANGE IN ADM ISSIBILITY OF DEDUCTION U/S 10A OF THE ACT. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE ID. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER T O THE EXTENT MENTIONED ABOVE SINCE THE ASSESSEE HAS FAILED TO DISCLOSE HIS TRUE INCOME/BOOK PROFIT. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED TO TH E ABOVE EXTENT. THE APPELLANT CRAVES, TO LEAVE, TO AMEND OR ALTER ANY GROUND OR A DD A NEW GROUND WHICH MAY BE NECESSARY. 3. THIS APPEAL WAS PRESENTED ON 20/04/2012. ON 10 .12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBI TING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUN AL 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 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRU CTIONS ARE APPLICABLE ON PENDING APPEAL ALSO. THE TAX EFFECT ON DELETION OF THE TOTAL ADDITION IN THIS APPEAL WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS P ROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, WHILE HEARING TH E APPEAL, SUCH FACTORS WERE NOT CONSIDERED, THEREFORE, IN CASE, ON RE-VERIFICAT ION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR T HEY FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DE PARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE ITA NO. 877/AHD/2012 ASST. YEAR 2007-08 3 FILED WITHIN LIMITATION PROVIDED IN LAW. IN VIEW O F THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 9 TH SEPTEMBER, 2016 AT AHMEDABAD. SD/- (S. S. GODARA) JUDICIAL MEMBER SD/- (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 09/09/2016 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 ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION .. : 9/9/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 9/9/2016 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 16 /9 /16 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..