The DCIT, Central Circle-1, Baroda V. Smt. Shashiben Rajendra Makhijani, Godhra

ITSSA 255/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9178 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 30-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Document seized; Audit objection; Tax effect; Documents seized
• Section: 143(3); 50C; 153A

Judgement Text

ITA NOS.254 & 255/AHD/2016 & CO NOS.170 & 171/AHD/2016 ASSESSMENT YEARS: 2009-10 & 2010-11 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH, AHMEDABAD [CORAM: JUSTICE P P BHATT, PRESIDENT AND PRAMOD KUM AR, VICE PRESIDENT] IT(SS)A NOS.254 & 255/AHD/2016 ASSESSMENT YEARS: 2009-10 & 2010-11 RESPECTIVELY DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, BARODA. ...... ...... APPELLANT VS. SHASHIBEN RAJENDRA MAKHIJANI .. .. RESPONDENT 7, 8, 9, VARDHMAN SOCIETY, NR. SHUKLA SOCIETY, POLICE CHOWKI NO.8, PRABHA ROAD, GODHRA 389 001. [PAN: ACLPM 1245 Q] C.O. NOS.170 & 171/AHD/2016 (IN IT(SS)A NOS.254 & 255/AHD/2016) ASSESSMENT YEARS: 2009-10 & 2010-11 RESPECTIVELY SHASHIBEN RAJENDRA MAKHIJANI .... APPELLANT 7, 8, 9, VARDHMAN SOCIETY, NR. SHUKLA SOCIETY, POLICE CHOWKI NO.8, PRABHA ROAD, GODHRA 389 001. [PAN: ACLPM 1245 Q] VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, BARODA. .. .. RESPONDENT APPEARANCES BY SUBHASH BAINS FOR THE REVENUE PARIN SHAH FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : 05.12.2018 DATE OF PRONOUNCEMENT : 17.12.2018 O R D E R ITA NOS.254 & 255/AHD/2016 & CO NOS.170 & 171/AHD/2016 ASSESSMENT YEARS: 2009-10 & 2010-11 PAGE 2 OF 4 PER PRAMOD KUMAR, VICE PRESIDENT: 1. BY WAY OF THESE APPEALS, THE APPELLANT ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDERS, BOTH DATED 23.05.2016, P ASSED BY THE LEARNED CIT(A)-12, AHMEDABAD, IN THE MATTER OF ASSESSMENT UNDER SECTIO N 153A R.W.S. 143(3) OF THE INCOME-TAX ACT, 1961, FOR THE ASSESSMENT YEARS 2009 -10 & 2010-11, ON THE FOLLOWING GROUNDS :- A.Y. 2009-10 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.12,37,627/ - OUT OF TOTAL ADDITION OF RS.37,53,022/- MADE BY THE AO ON ACCOUNT OF UNDISCL OSED CAPITAL GAIN IN SALE OF PROPERTIES AT R.S. NO.244 BY IGNORING THE R ATES AS APPEARING IN THE SEIZED DOCUMENTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ALTERNATE ADDITION OF RS. 16,36,625/- MADE BY THE AO UNDER SECTION 50C OF THE INCOME TAX ACT, 1961. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN TELESCOPING THE APPLICATION BASED DISC LOSURE IN THE CASE OF SHRI RAJENDRA MAKHIJANI, HUSBAND OF THE ASSESSEE WITH TH E INCOME EARNED BY THE ASSESSEE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 5. IT, IS THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) MAY BE SET ASIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO TH E ABOVE EXTENT. A.Y. 2010-11 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.82,86,159/ - OUT OF TOTAL ADDITION OF RS.96,67,839/- MADE BY THE AO ON ACCOUNT OF UNDISCL OSED CAPITAL GAIN IN SALE OF PROPERTIES AT R.S. NO.99/1 AND 244 BY IGNOR ING THE RATES AS APPEARING IN THE SEIZED DOCUMENTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ALTERNATE ADDITION OF RS. 40,04,500/- MADE BY THE AO UNDER SECTION 50C OF THE INCOME TAX ACT, 1961. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN TELESCOPING THE APPLICATION BASED DISC LOSURE IN THE CASE OF SHRI RAJENDRA MAKHIJANI, HUSBAND OF THE ASSESSEE WITH TH E INCOME EARNED BY THE ASSESSEE. ITA NOS.254 & 255/AHD/2016 & CO NOS.170 & 171/AHD/2016 ASSESSMENT YEARS: 2009-10 & 2010-11 PAGE 3 OF 4 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 5. IT, IS THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) MAY BE SET ASIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO TH E ABOVE EXTENT. 2. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRESENT APPEALS OF THE REVENUE NEED TO BE DISMISSED ON ACCO UNT OF LOW TAX EFFECT IN VIEW OF THE RECENT CBDT CIRCULAR NO.3 OF 2018 DATED 11.07.2 018. THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT TH E TAX EFFECT INVOLVED IN EACH APPEAL IS LESS THAN THE LIMIT PRESCRIBED BY THE AFO RESAID CBDT CIRCULAR. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT PRIMA-FACIE THESE APPEALS OF T HE REVENUE ARE NOT MAINTAINABLE IN VIEW OF THE RECENT CBDT CIRCULAR NO.3/2018 IN F. NO.279/MISC.142/2007-ITJ (PT) DATED 11 TH JULY, 2018, VIDE WHICH IT HAS BEEN DECIDED BY THE BOARD THAT NO DEPARTMENTAL APPEALS SHOULD BE FILED BEFORE THE TRI BUNAL IF THE TAX EFFECT BY VIRTUE OF THE COMMISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS. 20 LACS. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (10) OF THE INSTR UCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLIC ABLE, WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT/RULE IS UNDER CHALLENGE OR WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPA RTMENT OR WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS ETC. WE FIND THAT THE PRESENT CASES DO NOT FALL WITHIN THE EXEMPTION CLAUSE AND T HE TAX EFFECT IS LESS THAN RS.20 LACS IN EACH APPEAL. THEREFORE, THE PRESENT APPEA LS ARE NOT MAINTAINABLE AND HENCE DISMISSED. 4. COMING TO THE CROSS OBJECTIONS FILED BY THE ASSE SSEE, AS THE APPEALS ITSELF ARE HELD TO BE NON-MAINTAINABLE, THE VERY FOUNDATIO N OF CROSS OBJECTIONS CEASE TO HOLD GOOD IN LAW. THE CROSS OBJECTIONS ARE, THEREF ORE, ALSO DISMISSED. 5. IN THE RESULT, APPEALS FILED BY THE REVENUE AND CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COU RT TODAY ON THE 17 TH DAY OF DECEMBER, 2018. SD/- SD/- JUSTICE P P BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) AHMEDABAD, DATED THE 17 TH DAY OF DECEMBER, 2018 PBN/* ITA NOS.254 & 255/AHD/2016 & CO NOS.170 & 171/AHD/2016 ASSESSMENT YEARS: 2009-10 & 2010-11 PAGE 4 OF 4 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD