The ACIT, Central Circle-1(3), Ahmedabad V. Shri Ravjibhai Popatbhai Vasani, Ahmedabad

ITSSA 482/AHD/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7369 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 13-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH SR DR
• Assessee Lawyers: P M MEHTA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER IT(SS)A NO.482/AHD/2010 & C.O. NO.196/AHD/2010 (A/O ITA NO.482/AHD/2010) ASSESSMENT YEAR:2007-08 ACIT, CENTRAL CIRCLE-1 (3), ROOM NO. 304, 3 RD FLOOR, AAYKAR BHAVAN, ASHRAM ROAD, AHMEDABAD SHRI RAVJIBHAI POPATBHAI VASANI 25, KRISHNANAGAR SOCIETY, OPP. NARAN CHAMBERS, THAKKAR BAPA NAGAR ROAD, AHMEDABAD [ PAN NO.AASPV 6467E ] V/S . V/S . SHRI RAVJIBHAI P VASANI 25, KRISHNANAGAR SOCIETY, OPP. NARAN CHAMBERS, THAKKAR BAPA NAGAR ROAD, AHMEDABAD ACIT, CENTRAL CIRCLE-1 (3), ROOM NO.304, 3 RD FLOOR, AAYKAR BHAVAN, ASHRAM ROAD, AHMEDABAD /APPELLANT .. /RESPONDENT) /BY ASSESSEE SHRI P.M. MEHTA, AR /BY REVENUE SHRI D.K. SINGH, SR-DR /DATE OF HEARING 14-12-2012 /DATE OF PRONOUNCEMENT 31-12-2012 ! ! ! ! /O R D E R PER A.K.GARODIA, ACCOUNTANT MEMBER:- THIS APPEAL IS FILED BY REVENUE AND CROSS OBJECTIO N (CO) IS FILED BY ASSESSEE AND THESE ARE DIRECTED AGAINST THE ORDER O F COMMISSIONER OF IT(SS)A NO.482/AHD/2010 & CO 196/AHD/10 A.Y. 07-08 ACIT CC-1(3) ABD V. SH RAVJIBHAI P VASANI PAGE 2 INCOME-TAX (APPEALS)-I, AHMEDABAD (CIT(A) FOR SHO RT) DATED 19-03-2010 FOR THE ASSESSMENT YEAR (AY) 2007-08. 2. AT THE VERY BEGINNING, IT WAS SUBMITTED BY LD. A R OF THE ASSESSEE THAT CO FILED BY THE ASSESSEE IS NOT PRESSED. ACCORDINGL Y, THE SAME IS DISMISSED AS NOT PRESSED. 3. IN THE RESULT, CO OF ASSESSEE IS DISMISSED AS NO T PRESSED. 4. REGARDING THE APPEAL FILED BY THE REVENUE, IT WA S SUBMITTED BY LD AR OF THE ASSESSEE THAT TAX EFFECT IN THIS CASE IS ONL Y RS.2.35 LAKH AND HE SUBMITTED A WORKING OF THIS TAX EFFECT. HE FURTHER SUBMITTED THAT AS PER THE BOARDS CIRCULAR NO. 3 OF 2011 DATED 09-02-2011, NO APPEAL CAN BE FILED BY THE REVENUE BEFORE TRIBUNAL IF THE TAX EFFECT IS BE LOW OF RS.3 LAKH. HE FURTHER SUBMITTED THAT ALTHOUGH THIS INSTRUCTION OF THE CBD T IS OF LATER DATE I.E. 09-02- 2011 AND THE PRESENT APPEAL WAS FILED BY THE REVENU E ON 07-05-2010 BUT AS PER THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COU RT RENDERED IN THE CASE OF CIT V. SURESHCHANDRA DURGAPRASAD KHATOD (HUF) IN TAX APPEAL NO. 1404 OF 2010 DATED 24-08-2012, IT WAS HELD BY THE HONBLE J URISDICTIONAL HIGH COURT THAT THIS BOARD INSTRUCTION NO. 3 OF 2011 DATED 09- 02-2011 IS APPLICABLE TO PENDING APPEALS ALSO. HE SUBMITTED A COPY OF THIS J UDGMENT OF HONBLE JURISDICTIONAL HIGH COURT. 5. IN REPLY, IT WAS SUBMITTED BY LD. SR-DR OF THE R EVENUE THAT SINCE THIS BOARDS INSTRUCTION NO. 3 OF 2011 DATED 09-02-2011 IS OF A LATER DATE AND APPEAL WAS FILED BY THE REVENUE AT AN EARLY DATE, T HIS BOARD INSTRUCTION IS NOT APPLICABLE IN THE PRESENT CASE, BECAUSE AS PER THIS INSTRUCTION, IT WAS SPECIFIED THAT INSTRUCTION WILL APPLY TO THE APPEALS FILED AF TER 09-02-2011. HE ALSO PLACED RELIANCE ON A JUDGMENT OF HONBLE SUPREME COURT REN DERED IN THE CASE OF CIT V. ATMA RAM PROPERTIES (P.) LTD. (2012) 25 TAXMANN.COM 303 (SC). RELIANCE WAS ALSO PLACED ON THE JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT IT(SS)A NO.482/AHD/2010 & CO 196/AHD/10 A.Y. 07-08 ACIT CC-1(3) ABD V. SH RAVJIBHAI P VASANI PAGE 3 (FULL BENCH) RENDERED IN THE CASE OF CIT V. VARINDERA CONSTRUCTION CO. (2011) AS REPORTED 331 ITR 449 (P&H) (FB). 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE RECORD AND GONE THROUGH THE JUDGMENTS CITED BY BOTH THE SIDES. WE F IND THAT AS PER WORKING GIVEN BY AR OF THE ASSESSEE, THE TAX EFFECT IN RESP ECT OF APPEAL FILED BY THE REVENUE IS OF RS.2.35 LAKH AND NO DEFECT HAS BEEN P OINTED OUT BY LD. DR OF THE REVENUE IN THIS WORKING AND AS PER BOARD INSTRU CTION NO. 3 OF 2011 DATED 09-02-2011, NO APPEAL CAN BE FILED BY THE REVENUE B EFORE TRIBUNAL IF TAX EFFECT IS OF LESS THAN RS.3 LAKH OR LESS. AS PER RE CENT JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF SURESHCHANDRA DURGAPRASAD KHATOD (HUF) (SUPRA), THIS INSTRUCTION NO. 3 OF 2011 DATED 09-0 2-2011 IS APPLICABLE TO PENDING APPEALS ALSO. WHILE HOLDING S O, HONBLE JURISDICTIONAL HIGH COURT HAS CONSIDERED AND AGREED WITH VARIOUS J UDGMENTS OF HONBLE BOMBAY HIGH COURT AND KARNATAKA HIGH COURT. RESPECT FULLY FOLLOWING THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT, WE H OLD THAT PRESENT APPEAL OF THE REVENUE IS NOT MAINTAINABLE BECAUSE TAX EFFECT IS LESS THAN RS.3 LAKH AND AS PER BOARD INSTRUCTION NO. 3 OF 2011 DATED 09-02- 2011, THE REVENUE CANNOT FILE APPEAL BEFORE TRIBUNAL WHERE TAX EFFECT IS BEL OW RS.3 LAKH. REGARDING THE RELIANCE OF LD. DR OF THE REVENUE ON JUDGMENT OF HO NBELE APEX COURT RENDERED IN THE CASE OF ATMA RAM PROPERTIES (P.) LTD. (SUPRA), WE FIND THAT THIS JUDGMENT IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE IN THAT CASE, THE DECISION OF HONBLE SUPREME COURT IS THIS THAT THIS INSTRUCTION NO. 3 OF 2011 DATED 09-02-2011 SHOULD NOT BE APPLIED IFSO FACTO PARTICULARLY WHEN THE MATTER HAS CASCADING EFFECT. IN THE PRESENT CASE, IT IS NO T SHOWN BY THE REVENUE THAT ISSUE INVOLVED IS HAVING A CASCADING EFFECT. HENCE, THIS JUDGMENT OF HONBLE SUPREME COURT IS NOT APPLICABLE IN THE PRESENT CASE . REGARDING SECOND JUDGMENT CITED BY THE LD. DR OF THE REVENUE HAVING BEEN RENDERED BY HONBLE PUNJAB & HARYANA HIGH COURT (FULL BENCH) IN THE CASE OF VARINDERA CONSTRUCTION CO (SUPRA), WE FIND THAT WHERE WE HAVE A JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT, WE ARE BOUND BY THE SAME AND WE CANNOT FOLLOW A IT(SS)A NO.482/AHD/2010 & CO 196/AHD/10 A.Y. 07-08 ACIT CC-1(3) ABD V. SH RAVJIBHAI P VASANI PAGE 4 JUDGMENT OF DIFFERENT HIGH COURT HAVING CONTRARY VI EW TO THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT. THEREFORE, WE AR E DUTY BOUND TO FOLLOW THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN PR EFERENCE TO A JUDGMENT OF DIFFERENT HIGH COURT I.E., HONBLE PUNJAB & HARYANA IN THE PRESENT CASE. 7. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED AS NOT MAINTAINABLE BECAUSE OF LOW TAX EFFECT. 8. IN COMBINED RESULT, APPEAL OF REVENUE AS WELL AS CO OF ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (KUL BHARAT) (A.K.GARODIA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, *DKP '#$- 31/12/2012 +,- . ! ! ! ! //0 //0 //0 //0 1 0 1 0 1 0 1 0 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. #-#/3 4 / CONCERNED CIT 4. 4- / CIT (A) 5. 0 78 ///3, /3 , +,- / DR, ITAT, AHMEDABAD 6. 8;< => / GUARD FILE. BY ORDER/ ! , /TRUE COPY/ ?/+ # /3 , +,- . STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 20/12 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 20/12 4) DATE OF CORRECTION 21/12 IT(SS)A NO.482/AHD/2010 & CO 196/AHD/10 A.Y. 07-08 ACIT CC-1(3) ABD V. SH RAVJIBHAI P VASANI PAGE 5 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 31/12 7) ORDER UPLOADED ON 31/12 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 31/12