The ITO, Ward-2(2), RAJKOT-GUJARAT V. Shri Hitesh M. Doshi, RAJKOT-GUJARAT

ITSSA 25/RJT/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2081 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 11-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH PANDEY
• Assessee Lawyers: MJ RANPURA
• Keywords: Retrospective amendment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH : E COURT, AT AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ IT(SS)A.NOS.25 TO 29/RJT/2013 [ASSTT.YEAR 2004-05 TO 2008-09] ITO, WARD - 2(2) RAJKOT. VS SHRI HITESH M DOSHI C/O. HAPPINESS GENERAL STORES OPP: GUNDAWADI POLICE CHOWKY RAJKOT. ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI YOGESH PANDEY, CIT - DR ASSESSEE BY : SHRI M.J. RANPURA, CA / DATE OF HEARING : 04/05/2016 / DATE OF PRONOUNCEMENT: 04/05/2016 $%&/ O R D E R PER BENCH: THESE ARE FIVE APPEALS FILED BY THE REVENUE AGAINST THE ORDERS OF THE LD.CIT(A)-IV, AHMEDABAD OF EVEN DATED 13.08.201 3 PASSED FOR THE ASST.YEAR 2004-2005 TO 2008-09. 2. BOTH THE PARTIES AGREED THAT THE ISSUES INVOLVED IN ALL THESE APPEALS ARE COMMON EXCEPT QUANTUM. THEREFORE, FOR THE SAKE OF CONVENIENCE, ALL THESE APPEALS ARE HEARD TOGETHER AND DISPOSED OF BY THIS CONSOLIDATED ORDER. IT(SS)A NO.25 TO 29/RJT/2013 2 3. REVENUE IN ALL THESE APPEALS IS AGGRIEVED BY THE ACTION OF THE LD.CIT(A) IN DELETING THE PENALTY UNDER SECTION 271 (1)(C) OF THE INCOME TAX ACT. 4. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE, AT THE OUTSET CONTENDED THAT THE TAX EFFECT IN ALL THESE APPEALS ARE BELOW RS.10 LAKHS, AND THEREFORE, APPEALS FILED BY THE REVENUE ARE NOT ADMISSIBLE, IN VIEW OF CBDT CIRCULAR NO.21/2015 DATED 10.12.2015. BY V IRTUE OF THIS INSTRUCTION, THE BOARD HAS RESTRAINED THE DEPARTMEN T NOT TO FILE APPEAL BEFORE THE TRIBUNAL WHERE THE TAX EFFECT IS BELOW R S.10 LAKHS, AND THEREFORE, APPEAL OF THE ASSESSEE LIABLE TO BE DISM ISSED IN LIMINE . THE LD.DR COULD NOT CONTROVERT TO THIS SUBMISSION OF TH E LD. COUNSEL FOR THE ASSESSEE. 5. WE FIND THAT THE ASSESSEE HAS FILED THESE APPE ALS ON 11.10.2013. ON 10.12.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEAR ING NO. 21/2015 PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO 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 THAN RS.10 L AKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT , MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEAL S ALSO. IN THE PRESENT CASE, PENALTY HAS BEEN MADE ON THE DISCLOSURE OF RS .5.00 LAKHS EACH TO THE ASSESSMENT YEAR, AND THEREFORE, TAX EFFECT WOUL D BE LESS THAN RS.10 LAKHS FOR RESPECTIVE ASSESSMENT YEARS. THUS, THE P RESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLAT ION OF CBDT INSTRUCTIONS. IT IS FURTHER OBSERVED THAT SINCE, W HILE HEARING THE APPEAL, SUCH FACTORS COULD NOT BE CROSS-VERIFIED, THEREFORE , IN CASE, ON RE- IT(SS)A NO.25 TO 29/RJT/2013 3 VERIFICATION AT THE END OF THE AO, IT CAME TO THE N OTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN LIMITATION PRESCRIBED UNDER THE LAW. IN VIEW OF TH E ABOVE, THE APPEALS OF THE REVENUE ARE DISMISSED. 6. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE COURT ON 4 TH MAY, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER