The ACIT, Central Circle-2(2), Ahmedabad V. Shri Ashokbhai Ishwarbhai Prajapati, Ahmedabad

ITSSA 387/AHD/2012

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 2715 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: M K PATEL SHRI P F JAIN
• Keywords: Retrospective amendment; Tax effect

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ IT(SS)A NO. 387/AHD/2012 / ASSESSMENT YEAR: 2010-11 ACIT, CENT.CIR.2(2) AHMEDABAD. VS SHRI ASHOKBHAI ISHWARBHAI PRAJAPATI 43, VAIBHAV BUNGALOWS VIBHAG-3 NR.GULAB TOWER, SOLA ROAD AHMEDABAD 380059. PAN : AKMPP 7526 J / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI S.K. DEV, SR.DR ASSESSEE BY : SHRI M.K. PATEL FOR SHRI P.F.JAIN, FOR ASSESSEE / DATE OF HEARING : 12/10/2018 /DATE OF PRONOUNCEMENT : 15 /10/2018 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : THIS IS REVENUES APPEAL AGAINST ORDER OF THE LD.CIT(A)-III, AHMEDABAD DATED 10.5.2012 PASSED FOR THE ASSESSMENT YEAR 2010-11. 2. IN THIS APPEAL REVENUE IS AGGRIEVED BY ACTION OF THE LD.CIT(A) IN DELETING ADDITION ON ACCOUNT OF UNDISCLOSED INCOME FOR THE ASSTT.YEAR 2010-11. IT(SS)A NO.387/AHD/2012 - 2 - 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE C ONTENDED THAT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE BEC AUSE THE SAME IS HIT BY THE RECENT CBDT CIRCULAR WHICH PROHIBITS FILING OF APPEAL BY THE REENUE BEFORE THE TRIBUNAL WHERE TAX EFFECT IS BELOW RS.20 LAKHS, AND THEREFORE THE PRESENT APPEAL IS LIABLE TO BE DISMISSED IN LIMINE . THE LD.DR DID NOT CONTEST THE SAME AND SUBMITTED THAT THE ISSUE IS LE FT TO THE TRIBUNAL TO BE DECIDED IN ACCORDANCE WITH LAW. 4. WE FIND THAT THE APPEAL OF THE REVENUE IS PRESEN TED ON 6.8.2012. ON 11.7.2018 THE CBDT HAS ISSUED INSTRUCTION BEARING N O. 3 OF 2018 UNDER FILE NO.F.NO.279/MISC.142/2007-ITJ(PT) PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUN AL 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.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRU CTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE, ADDITIO N CONTESTED BY THE REVENUE IS RS.21.30 LAKHS AND THEREFORE THE TAX EFF ECT ON SUCH ADDITION WOULD NOT BE MORE THAN RS.20 LAKHS. AS PER THE ABOV E CIRCULAR THE TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY TH E AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FIL ED, IS LESS THAN RS.20 LAKHS. FURTHER, THE CASE OF THE REVENUE ALSO DOES N OT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEP ING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVE NUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. IT(SS)A NO.387/AHD/2012 - 3 - HOWEVER, IT IS OBSERVED THAT IN CASE ON RE-VERIFICA TION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT I S MORE OR REVENUES CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN TH E CIRCULAR, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBU NAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF TH E REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 15 TH OCTOBER, 2018. SD/- SD/- (PRADIP KUMAR KEDIA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER