The ACIT, Cent, Circle-2(1), Ahmedabad V. Shri Deepak Manilal Patel, Ahmedabad

ITSSA 550/AHD/2011

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1406 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 28-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 14-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Audit objection; Tax effect

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD - , , BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER SL. NO(S) IT (SS) A /CO NO(S) ASSESSMENT YEAR(S) APPEAL(S) /CO BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 550/AHD/2011 2007 - 08 ACIT CENTRAL CIR-2(1) AHMEDABAD SHRI DEEPAK MANILAL PATEL 301/1, PARSHWA OPP.RAJPATH CLUB SG ROAD, BODAKDEV AHMEDABAD PAN: AAQPP 3323 H 2. 551 /AHD/201 1 2008 - 09 T HE ACIT CENTRAL CIR-2(1) AHMEDABAD SHRI DEEPAK MANILAL PATEL (SAME ADDRESS) PAN: AAQPP 3323 H 3. 55 2/AHD/201 1 200 9 - 1 0 THE ACIT CENTRAL CIR-2(1) AHMEDABAD SHRI DEEPAK MANILAL PATEL (SAME ADDRESS) PAN: AAQPP 3323 H 4. CO NO.250/AHD/11 (IN IT(SS)A NO.551/AHD/11) 2008 - 09 SHREE DEEPAK MANILAL PATEL, AHMEDABAD PAN: AAQPP 3323 H THE ACIT CENTRAL CIR-2(1) AHMEDABAD 5. CO NO.251/AHD/11 (IN IT(SS)A NO.552/AHD/11) 2009 - 10 SHREE DEEPAK MANILAL PATEL, AHMEDABAD PAN: AAQPP 3323 H THE ACIT CENTRAL CIR-2(1) AHMEDABAD REVENUE BY : SHRI SANJAY AGRAWAL, CIT-DR ASSESSEE BY : SHRI KARAN SHAH, AR WITH SHRI JWALIN NANAVATY, ADV. ! / DATE OF HEARING 28/01/2016 '# ! / DATE OF PRONOUNCEMENT 28/01/2016 IT(SS)A NOS.550,551 & 552/AHD/2011 AYS 2007-08, 2008-09 & 2009-10 RESPECTIVELY ACIT VS. SHRI DEEPAK MANILAL PATEL AND CO NOS.250 & 251/AHD/11(BY ASSESSEE) FOR AYS 2008-09 & 2009-10 - 2 - / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE REVENUE AND THE ASSESSEE HAVE CHALLENGED THE CO MMON ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-III, AHMEDABAD [CIT(A) IN SHORT] DATED 02/08/2011 BY FILING THE APPEALS FOR AYS 2007-08, 2008-09 AND 2009-10 AND CROSS OBJECTIONS F OR AYS 2008-09 & 2009-10 RESPECTIVELY. 2. AT THE OUTSET, IT IS NOTICED THAT THE ASSESSING OFFICER (AO IN SHORT) HAS ASSESSED THE TOTAL INCOME FOR AY 2007-08 AT RS. 27,17,798/-, FOR AY AT RS.19,77,317/- AND FOR AY 2009-10 AT RS.17,87,53 4/-. 2.1. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE TAX EFFECT INVOLVED IN THESE REVENUES APPEALS ARE LOWER THAN THE PRESCRIBED LIMIT AS PER CENTRAL BOARD OF DIRECT TAXES CIRCULAR NO. 2 1/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBE R 2015, THE REVISED LIMIT FOR PREFERRING REVENUE'S APPEALS IS R S.10 LACS. 2.2. THE LD.CIT-DEPARTMENTAL REPRESENTATIVE COULD N OT CONTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE AS SESSEE. IT(SS)A NOS.550,551 & 552/AHD/2011 AYS 2007-08, 2008-09 & 2009-10 RESPECTIVELY ACIT VS. SHRI DEEPAK MANILAL PATEL AND CO NOS.250 & 251/AHD/11(BY ASSESSEE) FOR AYS 2008-09 & 2009-10 - 3 - 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. WE FIND THAT THE PRESENT APPEALS OF THE REVENUE ARE NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 I N F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WH ICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE CO MMISSIONER OF INCOME- TAX (APPEALS)S ORDER IS BELOW RS. 10 LAKHS, THEN T HAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIO NS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLIC ABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR AD DITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UN DISCLOSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT THE PRES ENT CASES DO NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THA N RS. 10 LAKHS. THEREFORE, THE PRESENT APPEALS ARE NOT MAINTAINABLE AND, HENCE, DISMISSED. 4. IN THE RESULT, ALL THE THREE APPEALS, I.E. IT(SS )A NOS.550, 551 & 552/AHD/2011 FOR AYS 2007-08, 2008-09 & 2009-10 RES PECTIVELY FILED BY THE REVENUE ARE DISMISSED IN LIMINE. 5. ASSESSEES CROSS OBJECTION NOS.250 & 251/AHD/201 1 FOR AYS 2008-09 & 2009-10 [ARISING OUT OF IT(SS)A NOS.551 & 552/AHD/11 FOR IT(SS)A NOS.550,551 & 552/AHD/2011 AYS 2007-08, 2008-09 & 2009-10 RESPECTIVELY ACIT VS. SHRI DEEPAK MANILAL PATEL AND CO NOS.250 & 251/AHD/11(BY ASSESSEE) FOR AYS 2008-09 & 2009-10 - 4 - AYS 2008-09 & 2009-10-REVENUES APPEALS-SUPRA]. T HE ASSESSEE HAS RAISED THE FOLLOWING COMMON GROUNDS IN HIS CROSS-OB JECTION(S):- AL THE GROUNDS IN THIS CROSS-OBJECTIONS ARE MUTUAL LY EXCLUSIVE AND WITHOUT PREJUDICE TO EACH OTHER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I II, AHMEDABAD, AFTER CAREFULLY CONSIDERING THE FACTS OF THE CASE, DETAILS AND SUBMISSION MADE BY THE RESPONDENT AND A FTER CONSIDERING THE VARIOUS JUDICIAL PRONOUNCEMENTS REL IED UPON BY THE RESPONDENT, HAS RIGHTLY DELETED THE ADDITION OF RS.2,97,365/- FOR AY 2008-09 AND OF RS. 7,18,561/- FOR AY 2009-10 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN LAN D U/S.69B OF THE I.T.ACT, 1961. 2. YOUR RESPONDENT CRAVES RIGHT TO ADD, AMEND, ALTER, MODIFY, SUBSTITUTE, DELETE OR MODIFY ALL OR ANY OF THE ABOV E GROUNDS OF CROSS-OBJECTION. 6.1. SINCE WE HAVE DISMISSED THE REVENUES APPEALS IN IT(SS)A NOS.551 & 552/AHD/2011 FOR AYS 2008-09 & 2009-10-SU PRA, AS NOT MAINTAINABLE, THEREFORE CROSS OBJECTIONS FILED BY T HE ASSESSEE OUT OF REVENUES APPEALS ARE ALSO DISMISSED AS NOT MAINTAI NABLE. HOWEVER, ASSESSEE WOULD BE AT LIBERTY TO FILE AN APPEAL AGAI NST THE ORDER OF THE LD.CIT(A), IF SO ADVISED. IT(SS)A NOS.550,551 & 552/AHD/2011 AYS 2007-08, 2008-09 & 2009-10 RESPECTIVELY ACIT VS. SHRI DEEPAK MANILAL PATEL AND CO NOS.250 & 251/AHD/11(BY ASSESSEE) FOR AYS 2008-09 & 2009-10 - 5 - 7. IN THE RESULT, REVENUES APPEALS AS WELL AS ASSE SSEES CROSS OBJECTIONS ARE DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE COURT ON 28 TH JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( MANISH BORAD ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 28/ 01 /2016 )!.., .../ T.C. NAIR, SR. PS !'#'$ / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 1123 4 / CONCERNED CIT 4. 4 ( +, ) / THE CIT(A)-III, AHMEDABAD 5. 56 /23 , +,! +23# , + / DR, ITAT, AHMEDABAD 6. 689 : / GUARD FILE. / BY ORDER, 05, / //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 28.1.16(BELOW 10 LACS) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28.1.16 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.28.1.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.1.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER