The ACIT, Central Circle-2(1), Ahmedabad V. Shri Rajubhai K.Kapasi, Ahmedabad

ITSSA 183/AHD/2005

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8153 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-08-2011
• Assessment Year: misc
• Appeal Filed On: 15-06-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K GUPTA
• Assessee Lawyers: MUKESH M PATEL
• Keywords: Opportunity of being heard; Question of law; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 01/08/2011 DRAFTED ON: 01/08/2011 IT(SS)A NO.183/AHD/2005 BLOCK PERIOD 01/04/1996 TO 17/01/2003 THE ACIT CENTRAL CIRCLE-2(1) AHMEDABAD VS. SHRI RAJUBHAI K.KAPASI PROP. M/S.KAPASI HANDICRAFT EMPORIUM & KAPASI EXPORT F/F 101, 102 PUNIT PLAZA B/H.NAV GUJARAT COLLEGE ASHRAM ROAD, AHMEDABAD PAN/GIR NO. : ABBPK 9017 D ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI S.K.GUPTA, CIT-DR RESPONDENT BY: SHRI MUKESH M. PATEL O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WHI CH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-III, AHMEDAB AD DATED 23.03.2005 AND THE SOLITARY GROUND IN RESPECT OF QU ANTUM INVOLVED RAISED AS UNDER:- 1. THE LD. C.I.T.(A) HAS ERRED IN IGNORING THE MANDATO RY PROVISION OF SEC. 250(1) OF THE I.T.ACT, 1961 IN NO T GIVING NOTICE TO THE A.O. AND FURTHER, IN NOT GRANTING THE A.O. AN OPPORTUNITY OF BEING HEARD AS PER SECTION 250(2)(B) OF THE IT ACT, 1961. IT(SS)A NO.183/ AHD/2005 ACIT VS. SH.RAJUBHAI K.KAPASI BLOCK PERIOD 1-4-1996 TO 17-1-2003- - 2 - 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION OF RS.3,06,972/- ON ACCOUNT OF UNEXPLAINE D INVESTMENTS IN STOCKS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER ON THE ABOVE POINT. 2. FROM THE SIDE OF THE RESPONDENT-ASSESSEE, A PREL IMINARY OBJECTION WAS RAISED IN RESPECT OF THE TAX INVOLVED IN THIS A PPEAL OF THE REVENUE. LEARNED AUTHORISED REPRESENTATIVE MR.MUKESH M.PATEL HAS STATED THAT THIS APPEAL OF THE REVENUE DESERVES TO BE DISMISSED IN LIMINE BECAUSE AS PER GROUND NO.2, THE QUANTUM OF THE ADDITION INVOLV ES INCOME-TAX WHICH IS MUCH BELOW THE LIMIT PRESCRIBED BY SEVERAL CBDT CIRCULARS. 3. A QUERY WAS RAISED BY THE BENCH AS TO THE MAINT AINABILITY OF THE APPEALS, IN VIEW OF RECENT CBDT CIRCULAR RESTRICTIN G FILING OF APPEAL BY THE REVENUE, THE LEARNED DR DID NOT CONTROVERT THE SAME, AND STATED THAT THE TAX EFFECT IN THE PRESENT CASE IS BELOW THE TAX LIMIT PRESCRIBED THE CBDT. 4. AFTER HAVING HEARD BOTH PARTIES, CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE CBDT CIRCULARS ON THIS ISSUE, WE FIND THAT ITAT IS TAKING CONSISTENT VIEW IN NUMBER OF CASES ABOUT ADM ISSIBILITY OF APPEAL(S) FILED BY THE REVENUE IN VIEW OF VARIOUS I NSTRUCTIONS ISSUED BY CBDT FROM TIME TO TIME, VIZ. INSTRUCTION NO.1979 DA TED 27-3-2000, NO.1985 DATED 29-6-2000, NO.6 OF 2003 DATED 17-07-2 003, NO.19 OF 2003 DATED 23-12-2003, NO.5/2004 DATED 27-5-2004, NO.2/2005 DATED 24-10-2005 AND NO.5/2007 DATED 16-7-2007 AND LASTLY INSTRUCTION NO.F.NO.279/MISC.142/2007-IT DATED 15-5-2008 WHEREI N MONETARY IT(SS)A NO.183/ AHD/2005 ACIT VS. SH.RAJUBHAI K.KAPASI BLOCK PERIOD 1-4-1996 TO 17-1-2003- - 3 - LIMITS FOR FILING DEPARTMENTAL APPEALS (INCOME-TAX MATTERS) AND OTHER CONDITIONS WERE SPECIFIED, FOR FILING APPEALS BEFOR E APPELLATE TRIBUNALS, HIGH COURTS AND SUPREME COURT. DECISION OF COORDIN ATING BENCH OF ITAT, RAJKOT IN THE CASE OF ACIT VS. RAJOO ENGINEE RS LTD.[2006] 100 ITD 555, WHEREIN THE HON'BLE BENCH HAS DISMISSED TH E 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 D EALING WITH THE NEW LIMIT OF THE CIRCULAR DATED 24-10-2005. IT WAS WITH REFERENCE TO THE EARLIER CIRCULAR WHERE REFERENCE WAS NOT REQUIRED T O BE FILED TO THE HIGH COURT IF THE TAX EFFECT WAS LESS THAN RS.2 LAKHS. THE CONTENTION OF THE REVENUE IN THAT CASE WAS THAT RS.2 LAKHS LIMIT WAS INCREASED BY CIRCULAR DATED 27-3-2000 AND PRIOR TO THAT, THE LIMIT WAS ON LY RS.50,000/- AND THE CONTENTION OF THE REVENUE WAS THAT THE NEW LIMI T WOULD NOT BE APPLICABLE TO THE OLD REFERENCES. THE HIGH COURT R EJECTED THE SAID CONTENTION OF THE REVENUE. [PARAGRAPH 4]. IN THOSE CIRCUMSTANCES, THOUGH THE SAID HIGH COURT DECISION DID NOT DEAL WITH THE CIRCULAR DATED 24-10-2005, BUT IT HAD DEALT WITH THE EARLIER CIRCULAR AND THE LIMITS OF THAT CIRCULAR WERE APPLI ED EVEN TO THE CASES WHICH WERE PRIOR TO THE OLD CIRCULAR. THEREFORE, TH E RATIO OF THAT DECISION 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 ON THE REVENUE EVEN TO APPEALS FILED BEFORE 31-10- 2005 AND THE DEPTT.. WOULD NOT BE JUSTIFIED IN PROC EEDING WITH THOSE APPEALS WITHIN THE MONETARY LIMIT OF TAX EFFECT PRE SCRIBED IN THE CIRCULAR DATED 24-10-2005 [PARAGRAPH 5]. THE CONTENTION OF THE REVENUE THAT THE CASE OF THE ASSESSEE WAS COVERED BY THE EXCEPTION 3 HAD ALSO NO FORCE INASMUCH AS TH E SAID EXCEPTION PROVIDES THAT THE CBDT HAS ALSO DECIDED THAT IN CAS ES INVOLVING SUBSTANTIAL QUESTION OF LAW OF IMPORTANCE AS WELL A S IN CASES WHERE THE SAME QUESTION OF LAW WILL REPEATEDLY ARISE, EITHER IN THE CASE CONCERNED OR IN SIMILAR CASES, SHOULD BE SEPARATELY CONSIDERE D ON MERITS WITHOUT BEING HINDERED BY THE MONETARY LIMITS [PARAGRAPH 6] . IT(SS)A NO.183/ AHD/2005 ACIT VS. SH.RAJUBHAI K.KAPASI BLOCK PERIOD 1-4-1996 TO 17-1-2003- - 4 - 4. IN THIS VIEW OF THE MATTER, RESPECTFULLY FOLLOWI NG VARIOUS ORDERS OF THIS TRIBUNAL ON THIS ISSUE INCLUDING THE DECISION CITED ABOVE, WE DISMISS THE APPEAL OF THE REVENUE IN LIMINE . 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 5 TH AUGUST 2011. SD/- SD/- ( G.D. AGARWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDI CIAL MEMBER AHMEDABAD; DATED 5/ 8 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-III, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..01/08/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 01/08/2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 5.8.0211 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5.8.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER