The ACIT, Circle-2(1), Baroda V. Dr. Bharat S. Mody, Baroda

ITSSA 193/AHD/2015

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3514 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2000-2001
• Appeal Filed On: 13-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ IT(SS)A NO.193, 194 AND 195 /AHD/2015 / ASSTT. YEAR: 2000-2001, 2001-02 AND 2002-03 DCIT, CIR.1(2) BARODA. VS. DR. BHARAT S. MODY 101, AAKASH GANGA COMPLEX NR. VANIJYA BHAVAN RACE COURSE CIRCLE BARODA 3900 007. PAN : ACGPM 5950 M / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI MUDIT NAGPAL, SR.DR ASSESSEE BY : NONE (WRITTEN SUBMISSIONS) ! / DATE OF HEARING : 07/12/2017 '#$ ! / DATE OF PRONOUNCEMENT: 07/12/2017 %& / O R D E R PER BENCH: THESE THREE APPEALS ARE FILED BY THE REVENUE AGAINS T ORDERS OF THE LD.CIT(A)-5, VADODARA ALL DATED 4.3.2015 FOR THE ABOVE THREE ASSESSMENT YEARS. REVENUE IS AGGRIEVED BY T HE ACTION OF THE LD.CIT(A) IN DELETING PENALTY IMPOSED BY THE AO UNDER SECTION271(1)(C) OF THE INCOME TAX ACT, 1961. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING. HOWEVER, THE ASSESSEE HAS FILED WRITTEN S UBMISSIONS DATED 5.12.2017. THEREFORE, WE PROCEED TO DECIDE T HE APPEAL EX IT(SS)A NO.193/AHD/2015 & 2 OTHERS 2 PARTE QUA THE ASSESSEE, AFTER HEARING THE LD.DR AND CONSIDERI NG THE MATERIAL AVAILABLE ON RECORD. 3. WE NOTICED FROM GROUNDS OF APPEAL THAT THE REVEN UE HAS CHALLENGED DELETION OF PENALTY IMPOSED BY THE AO UN DER SECTION 271(1)(C) OF THE ACT. ASSESSEE HAS FILED WRITTEN S UBMISSIONS IN THIS BEHALF CHALLENGING LOCUS STANDI OF REVENUE TO FILE APPEAL BEFORE THE TRIBUNAL IN VIOLATION OF RECENT CBDT CIRC ULAR RESTRICTING APPEALS WHERE TAX EFFECT IS BELOW RS.10 LAKHS. SUB MISSIONS MADE BY THE ASSESSEE READ AS UNDER: THE PRESENT APPEAL IS PREFERRED BY THE REVENUE AGA INST THE DELETION OF THE PENALTY LEVIED U/S.271(1)(C) OF THE ACT BY THE LD.CIT(A)-5, VADODARA VIDE HIS ORDER DATED 04.03.20 15. THE ASSESSEE SUBMITS THAT THE TAX EFFECT IN THE PRE SENT APPEALS ARE LESS THAN RS.10.00 LAKHS AND IN ACCORDA NCE WITH THE CBDT CIRCULAR NO.21 OF 2015 THE APPEAL BEFORE TH E TRIBUNAL IS NOT MAINTAINABLE. THE TAX EFFECT ON TH E AMOUNT OF PENALTIES IN DISPUTE IS AS UNDER: ASSTT.YEAR AMOUNT (RS.) 2000-01 15,000/- 2001-02 1,60,000/- 2002-03 3,20,000/- TOTAL RS. 4,95,000/- WITHOUT PREJUDICE TO THE ABOVE, THE ASSESSEE SUBMIT S THAT THE APPEALS FILED BY THE DEPARTMENT FOR A.Y.2003-04 TO 2005-06 IN IT(SS)A.NO.196 TO 198/AHD/2015 HAVE BEEN DISMISSED VIDE ORDER DATED 16.12.2015 (SCREEN SHOT OBTAINED FROM THE WEBSITE OF ITAT IS ENCLOSED FOR A LL THREE YEARS FOR YOUR HONOURS READY REFERENCE). IN VIEW OF THE ABOVE, PENALTIES LEVIED FOR A.Y.2000-01 TO 2002-03 ARE PRAYED TO BE DELETED. 4. WHEN WE CONFRONTED THE LD.DR WITH THIS SUBMISSIO N OF THE ASSESSEE, THE LD.DR WAS UNABLE TO DISPUTE THE SAME AND LEFT TO THE IT(SS)A NO.193/AHD/2015 & 2 OTHERS 3 TO THE TRIBUNAL TO DECIDE THE ISSUE IN ACCORDANCE W ITH LAW. 5. WE HAVE HEARD LD.DR AND GONE THROUGH THE RECORD AND THE IMPUGNED ORDERS. WE FIND THAT APPEAL OF THE REVENU E, WHICH IS FILED ON 13.7.2015 IS HIT BY RECENT CBDT INSTRUCTION NO.21 OF 2015 DATED 10.12.2015 WHEREBY THE BOARD HAS PROHIBITED IT S SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL B EFORE THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS TH AN RS.10 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RET ROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APP LICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, AS WE N OTICED FROM THE IMPUGNED ORDER OF THE LD.CIT(A) AT PAGE NO.11, ADDI TIONS ON WHICH PENALTY HAS BEEN IMPOSED UNDER SECTION 271(1)(C) AR E AS UNDER: ASSTT.YEAR AMOUNT (RS.) 2000-01 44,299/- 2001-02 4,51,697/- 2002-03 10,37,949 TAX EFFECT IN EACH OF THE ABOVE ASSESSMENT YEARS IS NOT MORE THAN RS.10 LAKHS. THEREFORE, PRESENT APPEALS ARE NOT MAI NTAINABLE AND DESERVE TO BE DISMISSED BEING TREATED TO BE FILED I N VIOLATION OF THE ABOVE CBDT INSTRUCTION. THEY ARE ACCORDINGLY DISMIS SED. 6. IT IS FURTHER OBSERVED THAT ON RE-VERIFICATION A T THE END OF THE AO, IT CAME TO THE NOTICE THAT TAX EFFECT IS MORE O R IT FALLS WITHIN THE AMBIT OF EXCEPTION PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHI N LIMITATION IT(SS)A NO.193/AHD/2015 & 2 OTHERS 4 PRESCRIBED UNDER THE LAW. WE, THEREFORE, DISMISS TH E APPEALS OF REVENUE WITHOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. 7. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DI SMISSED DUE TO LOW TAX EFFECT. ORDER PRONOUNCED IN THE COURT ON 7 TH DECEMBER, 2017. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 07/12/2017