The DCITBharuch Circle, Bharuch V. Maksud Ahmed Gulam Shailkh, Ankeshwar

ITSSA 160/AHD/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9525 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-03-2010
• Assessment Year: misc
• Appeal Filed On: 13-12-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: M K PATEL
• Keywords: Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND BHAVNESH SAINI, JUDICIAL MEMBER) IT(SS)A.NO.160/AHD/2007 BLOCK PERIOD 01/04/1996 TO 13/03/2002 DCIT, BHARUCH CIRCLE BHARUCH. VS. SHRI MAKSUD AHMED GULAM SHAIKH GULNAR SOCIETY ANKLESHWAR. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI C.K. MISHRA ASSESSEE BY : SHRI M.K.PATEL O R D E R PER G.D. AGARWAL, VICE-PRESIDENT: THIS IS REVENUES APPEAL AGAINST ORDER OF THE CIT(A)-VI, BARODA DATED 14-09- 2007 IN DIRECTING TO ASSESS THE RECEIPT OF RS.2,78,411/- UNDER CAPITAL GAINS IN STEAD OF TREATING THE SAME AS UNEXPLAINED/UNACCOUNTED MONEY RECEIVED BY THE ASSES SEE, AS HELD BY THE ASSESSING OFFICER. 2. AT THE OUT SET, THE LEARNED COUNSEL FOR THE ASSE SSEE RAISED PRELIMINARY OBJECTION AS TO THE MAINTAINABILITY OF THE APPEAL, IN VIEW OF RECENT CBDT CIRCULAR RESTRICTING FILING OF APPEAL BY THE REVENU E. LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT IN VIEW OF THE VARIOUS INSTR UCTIONS OF THE CBDT RESTRICTING THE FILING OF APPEALS BEFORE THE APPELL ATE TRIBUNALS, HIGH COURTS AND SUPREME COURT, THE APPEAL FILED BY THE REVENUE SHOU LD BE DISMISSED IN LIMINE . 3. AFTER HAVING HEARD BOTH PARTIES, CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE CBDT CIRCULARS ON THIS ISSUE, WE FIN D THAT ITAT IS TAKING CONSISTENT VIEW ON THE ISSUE OF ADMISSIBILITY OF AP PEAL FILED BY THE REVENUE IN THE LIGHT OF VARIOUS INSTRUCTIONS ISSUED BY CBDT FR OM TIME TO TIME, VIZ. INSTRUCTION NO.1979 DATED 27-3-2000, NO.1985 DATED 29-6-2000, NO.6 OF 2003 IT(SS)A.NO.160/AHD/2007 -2- DATED 17-70-2003, NO.19 OF 2003 DATED 23-12-2003, N O.5/2004 DATED 27-5- 2004, NO.2/2005 DATED 24-10-2005 AND NO.5/2007 DATE D 16-7-2007 AND LASTLY INSTRUCTION NO.F.NO.279/MISC.142/2007-IT DATED 15-5 -2008 WHEREIN MONETARY LIMITS FOR FILING DEPARTMENTAL APPEALS (INCOME-TAX MATTERS) AND OTHER CONDITIONS WERE SPECIFIED, RESTRICTING FILING APPEALS BEFORE A PPELLATE TRIBUNALS, HIGH COURTS AND SUPREME COURT. THE COORDINATE BENCH OF ITAT, RAJKOT IN THE CASE OF ACIT VS. RAJOO ENGINEERS LTD.[2006] 100 ITD 555 , WHEREIN THE HON'BLE BENCH HAS DISMISSED THE REVENUES APPEAL BY HOLDING AS UNDER (HEAD NOTES):- IT IS TRUE THAT THE HIGH COURT DECISION IN COMMISS IONER OF INCOME-TAX V. PITHWA ENGG. WORKS [2005], 276 ITR 519 WAS NOT DEAL ING WITH THE NEW LIMIT OF THE CIRCULAR DATED 24-10-2005. IT WAS WITH REFE RENCE TO THE EARLIER CIRCULAR WHERE REFERENCE WAS NOT REQUIRED TO BE FILED TO THE HIGH COURT IF THE TAX EFFECT WAS LESS THAN RS.2 LAKHS. THE CONTENTION OF THE RE VENUE IN THAT CASE WAS THAT RS.2 LAKHS LIMIT WAS INCREASED BY CIRCULAR DATED 27 -3-2000 AND PRIOR TO THAT, THE LIMIT WAS ONLY RS.50,000/- AND THE CONTENTION O F THE REVENUE WAS THAT THE NEW LIMIT WOULD NOT BE APPLICABLE TO THE OLD REFERE NCES. THE HIGH COURT REJECTED THE SAID CONTENTION OF THE REVENUE. [PARAG RAPH 4]. IN THOSE CIRCUMSTANCES, THOUGH THE SAID HIGH COURT DECISION DID NOT DEAL WITH THE CIRCULAR DATED 24-10-2005, BUT IT HAD DEALT WIT H THE EARLIER CIRCULAR AND THE LIMITS OF THAT CIRCULAR WERE APPLIED EVEN TO TH E CASES WHICH WERE PRIOR TO THE OLD CIRCULAR. THEREFORE, THE RATIO OF THAT DECI SION WAS APPLICABLE IN THE INSTANT CASE AS WELL. THE CBDT HAS TAKEN A POLICY DECISION NOT TO FILE APPEALS IN SUCH TYPE OF CASES AND THE CIRCULAR IS BINDING O N THE REVENUE EVEN TO APPEALS FILED BEFORE 31-10-2005 AND THE DEPTT.. WOU LD NOT BE JUSTIFIED IN PROCEEDING WITH THOSE APPEALS WITHIN THE MONETARY L IMIT OF TAX EFFECT PRESCRIBED IN THE CIRCULAR DATED 24-10-2005 [PARAGR APH 5] THE CONTENTION OF THE REVENUE THAT THE CASE OF THE ASSESSEE WAS COVERED BY THE EXCEPTION 3 HAD ALSO NO FORCE INASMUCH AS THE SAID EXCEPTION PROVIDES THAT THE CBDT HAS ALSO DECIDED THAT IN CASES INVOLVING SUBST ANTIAL QUESTION OF LAW OF IMPORTANCE AS WELL AS IN CASES WHERE THE SAME QUEST ION OF LAW WILL REPEATEDLY IT(SS)A.NO.160/AHD/2007 -3- ARISE, EITHER IN THE CASE CONCERNED OR IN SIMILAR C ASES, SHOULD BE SEPARATELY CONSIDERED ON MERITS WITHOUT BEING HINDERED BY THE MONETARY LIMITS [PARAGRAPH 6] AS PER THE INSTRUCTION CERTAIN EXCEPTIONS HAVE BEEN PROVIDED FOR AND THEY ARE (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE ACT OR RULE ARE UNDER CHALLENGE, (B) WHERE THE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES OR (C) THE REVENUE AUDIT OBJ ECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. NONE OF THESE THREE EX CEPTIONS HAVE BEEN CANVASSED BEFORE US ON BEHALF OF THE REVENUE. WE T HEREFORE HOLD THAT THE APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE AND DI SMISS THE SAME AS SUCH. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 5 TH MARCH, 2010. SD/- SD/- (BHAVNESH SAINI) JUDIIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 05-03-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD