The ITO, Ward-3(1), Surat V. Shri Vijayprakash B.Thakor,HUF, Surat

ITA 94/AHD/2009

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9473 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 22-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 09-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SONIA KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE S/SHRI SHAILENDRE YADAV,JM, AND MANISH BORAD, AM ./ITA.NO.94/AHD/2009 ALONG WITH CONO.34/AHD/2009 ( / ASSTT YEAR : 2005-06) ITO, WARD -3(1), SURAT VS. SHRI VIJAYPRAKASH B. THAKOR, HUF NIRAVGAJJARWADI, ATHAWA GATA, SURAT. PAN AABHV 2262C (APPELLANT) (RESPONDENT) / APPELLANT BY: MRS. SONIA KUMAR SR.DR / RESPONDENT BY: SHRI M. K. PATEL, AR / DATE OF HEARING 22/02/2016 /DATE OF PRONOUNCEMENT 22-02-2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD.CIT(A)- II, SURAT DATED 23/10/2008 PASSED FOR THE ASSTT.YEA R 2005-06. 2. THE GRIEVANCES OF THE REVENUE, AS PER GROUNDS OF APPEAL ARE AS FOLLOWS :- [1] ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A), SURAT HAS ERRED IN DELETING THE ADDITION MA DE BY THE A.O. OF RS.8,75,000/- HOLDING THAT THE AMOUNT OF RS.8,75,00 0/- WAS RECEIVED BY THE ASSESSEE FROM SMT.CHANDRIKADEVI BHAGAWATIPRA SAD WHICH SHE ITA.NO.94 & CO.34/AHD/2009 - 2 HAD RECEIVED AS ADVANCE FOR SALE OF LAND, IGNORING THE MATERIAL FACT THAT THE ASSESSEE HAD NEITHER FILED ANY CONFIRMATIO N OF SUCH ADVANCES FROM THE PURCHASERS OF THE SAID LAND DURING THE COU RSE OF ASSESSMENT PROCEEDINGS NOR DURING THE COURSE OF APPELLATE PROC EEDINGS BEFORE HIM AND IN ABSENCE OF ANY CONFIRMATION, THE GENUINE SS OF THE ADVANCE CANNOT BE REGARDED AS 'PROVED'. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER ON THIS ISSUE. [3] IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT THE ORDER OF THE ASSESSING OFFICER BE RESTORED . 3. ASSESSEES GROUNDS OF CROSS OBJECTION IS AS UND ER :- THE AO HAS ERRED IN MAKING ESTIMATED ADDITION ON AC COUNT OF LOW HOUSEHOLD EXPENSES. LR. CIT(A)-II, SURAT HAS ALSO E RRED IN CONFIRMING SUCH ESTIMATED ADDITION. 4. THIS APPEAL WAS PRESENTED ON 09/01/2009. ON 10. 12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PR OHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRU CTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. THE TAX EF FECT ON DELETION OF THIS TOTAL ADDITION 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 AMB IT OF EXCEPTIONS ITA.NO.94 & CO.34/AHD/2009 - 3 PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVE D THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX 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 AS NON-MAINTAINABLE. 5. AS THE APPEAL ITSELF IS HELD TO BE NON-MAINTAINA BLE, THE VERY FOUNDATION OF THE CROSS OBJECTION CEASES TO HOLD GO OD IN LAW. THE CROSS OBJECTION, THEREFORE, IS ALSO DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 22 ND FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (SHAILENDRA YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 22/02/2016 ITA.NO.94 & CO.34/AHD/2009 - 4 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , ,012 /DR,ITAT, AHMEDABAD, 6. .3 45 / GUARD FILE. ) ' / BY ORDER, ' (0 (ASSTT.REGISTRAR) ITAT, AHMEDABAD 1. DATE OF DICTATION .. : 22/2/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 22/2/2016 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 DICTATING MEMBER FO R 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 22 /2/16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATUR E ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER