The ACIT, Circle-1, Bhavnagar V. Jashwantrai D.Shah, Bhavnagar

ITA 965/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9866 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 15-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Business income; Retrospective amendment; Tax effect

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.965/AHD/2012 WITH CO NO.111/AHD/2012 /BLOCK ASSTT. YEAR: 2008-2009 ACIT, CIR.1 BHAVNAGAR. VS JASWANTRAI D. SHAH 940/B, CHANDRA VILAS NR. DAWN, KRISHNAGAR BHAVNAGAR 364 001. PAN : ABOPS 5431 Q %& / (APPELLANT) '( %& / (RESPONDENT) REVENUE BY : SMT. SOMOGYAN PAL, SR.DR ASSESSEE BY : SHRI M.K.PATEL / DATE OF HEARING : 15/12/2015 / DATE OF PRONOUNCEMENT: 06/01/2016 )*/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF LD.COMMISSIONER INCOME-TAX (APPEALS)-XX, AHMEDABAD DATED 15.02.2011 PASSED FOR THE ASSTT.YEAR 2008-09. 2. THE GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT( A) HAS ERRED IN TREATING THE BUSINESS INCOME AS INCOME FROM SHORT TERM CAPIT AL GAIN OF ITA NO.965/AHD/2012 WITH CO 2 RS.25,56,687/- AND ALSO ALLOWING THE EXPENSES OF RS .1,79,157/- CLAIMED BY THE ASSESSEE AGAINST LTCG. 3. THIS APPEAL WAS PRESENTED ON 05.5.2012. ON 10.1 2.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST T HE 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 INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, THE ASSESSED INCOME OF THE ASS ESSEE IS OF RS.14,12,520/- THE LD.CIT(A) HAS DIRECTED THE AO TO ASSESS THE GAI N ARISING FROM SALE OF SHARES WITHIN 30 DAYS OF PURCHASE BUSINESS INCOME A ND THE BALANCE TO BE ASSESSED AS SHORT TERM CAPITAL GAIN. HE FURTHER AL LOWED ASSESSEES CLAIM FOR INTEREST OF RS.1,79,157/- U/S.14A OF THE ACT. CUMUL ATIVE TAX EFFECT ON BOTH THESE ISSUES WOULD BE LESS THAN RS.10 LAKHS. THERE FORE, PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AM BIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVED THAT S INCE, WHILE HEARING THE APPEAL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE , IN CASE, ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT TH E TAX EFFECT 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 FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED. ITA NO.965/AHD/2012 WITH CO 3 5. ASSESSEE HAS FILED CO. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THE CO FOR ADJUDICATION, HENCE, DISMISS ED. 6. IN THE RESULT, APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 6 TH JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER