The Deputy Commissioner of Income Tax, Central Circle-1, Baroda V. Shri Sanjay Rameshbhai Jogi, Baroda

ITSSA 257/AHD/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7986 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 02-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Audit objection; Tax effect
• Section: 143(3); 153A; 14A

Judgement Text

ITSSA NO. 257/AHD/207& CO NO.28/AHD/2018 DCIT VS. SANJAY RAMESHBHAI JOGI ASSESSMENT YEAR: 2012-13 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND MAHAVIR PRASAD JM] IT(SS)A NO.257/AHD/2017 & CO NO. 28/AHD/2018 ASSESSMENT YEAR: 2012-13 DY. COMMISSIONER OF INCOME-TAX .............. ....APPELLANT CENTRAL CIRCLE-1, BARODA VS. SHRI SANJAY RAMESHBHAI JOGI ........................RESPONDENT & A-23, MIT BUNGALOWS, CROSS-OBJECTOR NR. AMIN PARTY PLOT, SUBHANPURA, BARODA-390 023 [PAN : ACGPJ 8765 M] APPEARANCES BY: SK DEV, FOR THE APPELLANT NONE - FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 19.09.2018 DATE OF PRONOUNCING THE ORDER : 25.09.2018 O R D E R PER PRAMOD KUMAR, AM: 1. THIS APPEAL BY THE REVENUE AND THE CROSS-OBJECTI ON THEREOF BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 28 TH FEBRUARY 2017, PASSED BY THE LEARNED CIT(A)-12, AHMEDABAD IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A OF THE INCOME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2012- 13. 2. THE GRIEVANCES RAISED BY THE ASSESSING OFFICER A RE AS FOLLOWS:- [1] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN NOT APPRECIATIN G THE PROVISIONS OF SECTION 153A OF THE I.T. ACT WHICH REQUIRES THE TOTAL INCOM E TO BE BROUGHT UNDER TAX WITHOUT ANY RESTRICTIONS. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN HOLDING THAT SU CH ASSESSMENT OR RE- ASSESSMENT U/S 153A IS TO BE RESTRICTED ONLY TO THE INCRIMINATING MATERIALS FOUND DURING THE SEARCH. [3] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT AS THE GROUND ON LEGALITY OF ADDITIONS IS ALLOWED, THE ITSSA NO. 257/AHD/207& CO NO.28/AHD/2018 DCIT VS. SANJAY RAMESHBHAI JOGI ASSESSMENT YEAR: 2012-13 PAGE 2 OF 3 OTHER GROUNDS ON MERITS ARE CONSIDERED NOT NECESSAR Y TO BE ADJUDICATED AS THE SAME ARE PURELY ACADEMIC. [4] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE AD DITION MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN OF RS.29,80,062/-. [5] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE AD DITION MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE OF RS. 1,49,003/-. [6] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE AD DITION MADE ON ACCOUNT OF DISALLOWANCE OF RS.99,173/- U/S 14A OF THE ACT. 3. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE; HOWEVER, SINCE THE ISSUE IN QUESTION IS COVERED BY CBDT CIRCULAR NO.3 OF 2018 DATED 11.07.2018, THIS APPEAL IS DECIDED EX-PARTE QUA THE ASSESSEE, AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSING THE MATERI AL AVAILABLE ON RECORD. 4. HAVING HEARD THE LEARNED DEPARTMENTAL REPRESENTA TIVE AND HAVING PERUSED THE MATERIAL ON RECORD, WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS 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 TRIBUNAL 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 INSTRUCTIONS 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 DEPARTMENT OR WHE RE THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS ETC. WE F IND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX EFFECT IS LESS THAN RS.20 LACS. THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DI SMISSED. 5. THE APPEAL OF THE REVENUE IS THUS DISMISSED IN LIMINE. 6. AS THE APPEAL FILED BY THE REVENUE ITSELF IS FOU ND TO BE NON-MAINTAINABLE AND AS THE CROSS-OBJECTION OF THE ASSESSEE ARISES ONLY AS A RESULT OF THIS APPEAL, THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALSO DISMISSED A S INFRUCTUOUS. 7. IN THE RESULT, THE APPEAL AND CROSS-OBJECTION, B OTH ARE DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 25 TH SEPTEMBER, 2018 SD/- SD/- MAHAVIR PRASAD PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 25 TH DAY OF SEPTEMBER, 2018 **BT ITSSA NO. 257/AHD/207& CO NO.28/AHD/2018 DCIT VS. SANJAY RAMESHBHAI JOGI ASSESSMENT YEAR: 2012-13 PAGE 3 OF 3 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ................LOW TAX EFFE CT COVERED BY CBDT CIRCULAR..19.09.2018.... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .. 19.09.2018..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 25.09.2018... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: . 25.09.2018.. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . 25.09.2018. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......