The ITO, Ward-7(1), Ahmedabad V. Shri Manilal Amulakhrai Kothari, Ahmedabad

ITSSA 41/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0558 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 16 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-02-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 20-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Keywords: Unexplained cash credit; Question of law; Tax effect
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD , LH LHLH LH BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. IT(SS)A. NO.41/AHD/2011 (ASSESSMENT YEAR:2004-05) ITO, WARD-7(1), AHMEDABAD APPELLANT VS. SHRI MANILAL AMULAKHRAI KOTHARI 19, JAY BHAVANI SOCIETY, NR. MALAV TALAV, VEJALPUR, AHMEDABAD. RESPONDENT PAN: ACMPK0159J /BY APPELLANT : SHRI T. P. KRISHNAKUMAR, CIT D.R. /BY RESPONDENT : SHRI HEM CHHAJED, A.R. !' /DATE OF HEARING : 05.02.2015 #$% !' /DATE OF PRONOUNCEMENT : 06.02.2015 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XIV, AHMEDABAD, DATED 22.10.2010 FOR A.Y. 2004-05 ON THE FOLLOWING GROUNDS: IT(SS)A NO. 41/AHD/11 A.Y. 04-05 [ITO VS. SHRI MANILAL A. KOTHARI] PAGE 2 1. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRE D IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.5,09,000/- BEING UNEXPLAINED CREDIT IN FIXED DEP OSIT U/S 69B OF THE ACT. 2. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.2,25,000/- BEING UNEXPLAINED DEPOSITS IN SAVING BANKS ACCOUNTS U/S 68 OF THE ACT. 2. IN THIS CASE, THE REVENUE HAS COME IN APPEAL ON ACCOUNT OF ADDITIONS DELETED BY CIT(A) AND MADE BY THE ASSE SSING OFFICER. THE ASSESSMENT YEAR IN THE APPEAL IS 2004 -05. THE TAX EFFECT ON THE DELETED ADDITIONS IS LESS THAN TH E THRESHOLD LIMIT, I.E. RS.4 LACS. THE APPEAL HAS BEEN FILED O N 20.01.2011. 3. WE FIND THAT THE TAX EFFECT IN THIS CASE IS LESS THAN RS.4 LACS. AS PER THE RECENT CBDT INSTRUCTION NO.5/2014 DATED 10.07.2014, THE REVENUE IS NOT PERMITTED TO FILE AP PEAL BEFORE THE TRIBUNAL IF THE TAX EFFECT IS LESS THAN RS. 4 L ACS. WE FIND SUPPORT FROM THE DECISION OF HONBLE SUPREME COURT DATED 25.03.2011 IN ITA NOS. 3 TO 5/2010. LD. DEPARTMENTA L REPRESENTATIVE FOR THE REVENUE SUBMITTED THAT INST RUCTION NO. 5/2014 IS NOT APPLICABLE FOR THE APPEALS FILED PRI OR TO ISSUE OF THE SAID INSTRUCTIONS. IT IS ALSO SUBMITTED THAT THE FULL BENCH OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CI T VS. VIRENDRA CONSTRUCTION CO., 239 CTR 1, HELD THAT REVISED MONETARY LIMITS ARE NOT APPLICABLE TO THE PENDING APPEALS, AND IT IS IN FAVOUR OF THE REVENUE. 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH TH E MATERIAL AVAILABLE ON RECORD. INSTRUCTION NO.5/201 4 DATED IT(SS)A NO. 41/AHD/11 A.Y. 04-05 [ITO VS. SHRI MANILAL A. KOTHARI] PAGE 3 10.07.2014 HAS REVISED THE MONETARY LIMIT FOR FIL ING THE APPEAL BY THE DEPARTMENT BEFORE INCOME-TAX APPELLAT E TRIBUNAL, HONBLE HIGH COURTS AND HONBLE SUPRE ME COURT. MONETARY LIMIT FOR FILING THE APPEAL BEFORE THE TRI BUNAL IS RS. 4 LACS; BEFORE HONBLE HIGH COURT RS. 10 LACS AND BE FORE HONBLE SUPREME COURT RS. 25 LACS. HONBLE SUPREME COURT IN THE ORDER DATED 25.03.2011 REFERRED TO ABOVE HAS HELD AS UNDER:- IT IS STATED THAT THE TAX IMPACT IN THE PRESENT CASES IS LESS THAN RS. 10.00 LACS. THE DEPARTMENT HAS R ECENTLY ISSUED AN INSTRUCTION BEARING NO. 3/2011 DATED 09.02.2011, WHICH IS IDENTICAL TO ITS EARLIER INSTRUCTION BEARING NO. 5/2008 DATED 15.05.2008 EXCEPT THAT IN SO FAR AS THE HIGH COURT IS CONCE RNED, THE MONETARY LIMIT IN RESPECT OF APPEALS WHERE T HE QUESTIONS OF LAW RAISED NEED NOT TO BE ANSWERE D, HAS BEEN RAISED FROM RS. 4.00 LACS TO RS. 10.00 LACS . THE DIVISION BENCH OF THIS COURT IN ITA NO. 89/1999 DECIDED ON 28.01.2011 HAS ALREADY HELD THAT THE INSTRUCTION BEARING NO. 5/2008 DATED 15.05.2008 WOULD APPLY EVEN TO THE OLD PENDING REFERENCES AND APPEALS. THIS PRINCIPLE WOULD THUS NATURALLY EQUA LLY APPLY TO THE INSTANT INSTRUCTION BEARING NO.3/2011 DATED 09.02.2011, AS WELL. THE TAX EFFECT BEING LESS THAN RS. 10.00 LACS, THE QUESTION OF LAW DOES NOT REQUIRE TO BE ANSWERED. THE APPEALS ARE DISPOSED OF ACCORDINGLY. 4.1 HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. IN ITA NO. 128/2008 DATED 03.03.20 11 HAS HELD AS UNDER:- THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS R S. 4,65,860/-. AS PER THE RECENT GUIDELINES OF THE CBDT, APPEAL IN THOSE CASES WHERE THE TAX EFFECT IS LE SS THAN RS. 10.00 LACS, ARE NOT TO BE ENTERTAINED. THIS COURT IN THE CASE OF CIT, DELHI-III VS. M/S P.S . JAIN & CO., BEING ITA NO. 179/1991 DECIDED ON 2 ND AUGUST, IT(SS)A NO. 41/AHD/11 A.Y. 04-05 [ITO VS. SHRI MANILAL A. KOTHARI] PAGE 4 2010 HAS TAKEN A VIEW THAT SUCH CIRCULAR WOULD ALSO APPLY TO PENDING CASES. 4.2 IN VIEW OF THE ABOVE, INSTRUCTION NO. 5/2014 DA TED 10.07.2014 WILL APPLY TO ALL PENDING APPEALS. RESPECTFULLY FOLLOWING THE PRECEDENT, IT IS HELD THAT THE APPEA L IS NOT MAINTAINABLE IN THE INSTANT CASE AS THE TAX EFFE CT IS LESS THAN RS.4 LACS. ACCORDINGLY, IT IS HELD THAT APPEA L FILED BY THE REVENUE IS NOT MAINTAINABLE. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED WITHOUT GOING INTO THE MERITS. PRONOUNCED IN THE OPEN COURT ON THIS THE 06 TH DAY OF FEBRUARY, 2015. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY S.K.SINHA & & & & ' ' ' ' ('% ('% ('% ('% / COPY OF ORDER FORWARDED TO:- 1. +, / REVENUE 2. / ASSESSEE 3. // 0 / CONCERNED CIT 4. 0- / CIT (A) 5. '45 , , / DR, ITAT, AHMEDABAD 6. 589 :; / GUARD FILE. BY ORDER / & ,