The DCIT, Central Circle-2(1), Ahmedabad V. Shri Rajnibhai Jivrajbhai Desai, HUF, Mehsana

ITSSA 125/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5104 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 08-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Assessee Lawyers: S N DIVETIA
• Keywords: Retrospective amendment; Tax effect
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SR. NO. IT(SS)A NO. ASS ESSMENT YEAR REVENUE ASSESSEE 1 125/AHD/2017 2010 - 11 DCIT, CC - 2(1), AHMEDABAD RAJNI BHAI JIVRAJBHAI DESAI, HUF, MEHSANA 2 126/AHD/2017 2010 - 11 DCIT, CC - 2(1), AHMEDABAD RAJESHBHAI JIVRAJBHAI DESAI, HUF, MEHSANA 3 127/AHD/2017 2010 - 11 DCIT, CC - 2(1), AHME DABAD RAMESHBHAI JIVRAJBHAI DESAI, HUF, MEHSANA 4 130/AHD/2017 2009 - 10 DCIT, CC - 2(1), AHMEDABAD RAMESHBHAI JIVRAJBHAI DESAI, HUF, MEHSANA 5 137/AHD/2017 2009 - 10 DCIT, CC - 2(1), AHMEDABAD RAJESHBHAI JIVRAJBHAI DESAI, HUF, MEHSANA 6 166/AHD/2017 2007 - 08 DC IT, CC - 2(1), AHMEDABAD SHRI JIVRAJBHAI V. DESAI, MEHSANA REVENUE BY : S H RI O.P. SHARMA , CIT - D . R. ASSESSEE BY: SHRI S.N. DIVETIA , A.R. DATE OF HEARING : 17 - 01 - 2 019 DATE OF PRONOUNCEMENT : 22 - 01 - 2 019 I.T(SS) A NOS. 125, 126, 127, 130, 137 & 166 /AHD/20 17 PAGE NO DCIT VS. ASSESSEES 2 / ORDER P ER BENCH : - THESE SIX APPEALS FILED BY REVENUE ARI SE FROM ORDER OF THE CIT(A) - 7, AHMEDABAD , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2 . AT THE OUTSET, AFTER GOING THROUGH THE GROUNDS OF SIX APPEAL S AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW, A QUERY WAS RAISED BY THE BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEAL S FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIR CULAR NO. 3/2018 DATED 11.7.2018 RESTRICTING THE FILLING OF THE APPEAL S BY THE REVENUE WHERE THE TAX EFFECT IS BELOW RS.20 LAKHS, THE LD. DR DID NOT DISPUTE THE SAME AND SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACCORDANCE WITH LAW . 3 . ON 11.7.2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007 - ITJ(PT) PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFE CT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, TAX EFFECT O N THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FILED, IS LESS THAN RS.20 LAKHS. FURTHER, THE CASE OF THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW I.T(SS) A NOS. 125, 126, 127, 130, 137 & 166 /AHD/20 17 PAGE NO DCIT VS. ASSESSEES 3 THAT THE PRESENT SIX APPEAL S OF THE REVENUE DESERVE TO BE DISMISSED. IT I S ACCORDINGLY DISMISSED. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE - VERIFICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUE S CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, ALL THE SIX APPEAL S OF THE REVENUE ARE DISMISSED DUE TO LOW TAX EFFECT. 4 . IN TH E RESULT, ALL THE SIX APPEAL S OF THE REVENUE ARE DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT O N 22 - 01 - 201 9 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCO UNTANT MEMBER AHMEDABAD : DATED 22 /01/2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,