The ACIT, Central Circle-1(4), Ahmedabad V. Shri Amit Rasikbhai Patel, Kadi

ITSSA 619/AHD/2011

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1404 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Assessee Lawyers: VIJAY RANJAN
• Keywords: Business income; Audit objection; Tax effect
• Section: 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER (SS) ./ I.T(SS).A. NO.619/AHD/2011 ( / ASSESSMENT YEAR : 2008-09) THE ACIT CENTRAL CIRCLE-1(4) AHMEDABAD / VS. SHRI AMITKUMAR RASIKBHAI PATEL 28, GAUTAMNAGAR CO-OP. HOUSING SOCIETY DETROJ ROAD NR.RAMJI MANDIR, KADI ' ./ ./ PAN/GIR NO. : ABUPP 4516 H ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) AND CO NO.9/AHD/2012 AY 2008-09 (IN IT(SS)A NO.619/AHD/2011 AY 2008-09) SHRI AMITKUMAR RASIKBHAI PATEL VS. THE ACIT, CC -1(4) AHMEDABAD AH MEDABAD (CROSS OBJECTOR) .. (R ESPONDENT) REVENUE BY : SHRI R. I. PATEL , CIT - DR ASSESSEE BY : SHRI VIJAY RANJAN, AR ( ) / DATE OF HEARING 30/12/2015 *+,- ) / DATE OF PRONOUNCEMENT 27/ 01/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE REVENUE AND THE ASSESSEE HAVE CHALLENGED THE OR DER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-I, AHMEDABAD [CIT(A) IN IT(SS)A NO.619 /AHD/2011 (BY REVENUE ) AND CO NO.9/AHD/2012(BY ASSESSEE) ACIT VS. SHRI AMIT RASIKBHAI PATEL ASST.YEAR 2008-09 - 2 - SHORT] DATED 28/09/2011 BY FILING THE APPEAL AND C ROSS OBJECTION RESPECTIVELY PERTAINING TO ASSESSMENT YEAR (AY) 200 8-09. 2. AT THE OUTSET, IT IS NOTICED THAT THE ASSESSING OFFICER (AO IN SHORT) HAS ASSESSED THE TOTAL INCOME AT RS.19,14,862/-. T HEREFORE, THE TAX EFFECT INVOLVED IN THIS REVENUES APPEAL IS LOWER THAN THE PRESCRIBED LIMIT AS PER CENTRAL BOARD OF DIRECT TAXES CIRCULAR NO. 21/2 015 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. 3. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CO NTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE AS SESSEE. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. WE FIND THAT THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATED 10TH DECEMBER 2015, VIDE WHICH IT HAS BE EN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE COMMISSIONER OF INC OME-TAX (APPEALS)S ORDER IS BELOW RS. 10 LAKHS, THEN THAT ORDER WOULD NOT BE CHALLENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD H AS PROVIDED EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREI N IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR ADDITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCL OSED FOREIGN ASSETS/BANK IT(SS)A NO.619 /AHD/2011 (BY REVENUE ) AND CO NO.9/AHD/2012(BY ASSESSEE) ACIT VS. SHRI AMIT RASIKBHAI PATEL ASST.YEAR 2008-09 - 3 - ACCOUNTS, ETC. WE FIND THAT THE PRESENT CASE DOE S NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS. 10 LA KHS. THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMIS SED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED IN LIMINE. 6. ASSESSEES CROSS OBJECTION NO.9/AHD/2012 FOR AY 2008-09 [ARISING OUT OF IT(SS)A NO.619/AHD/11 AY 2008-09- REVENUES APPEAL- SUPRA]. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HIS CROSS- OBJECTION:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) ERRED IN NOT ACCEPTING THE ASSESSEES PLEA THAT IT WAS NO T AT ALL A FIT CASE FOR INVOKING THE PROVISIONS FOR SECTION 153A AND HE FUR THER ERRED IN UPHOLDING THE VALIDITY OF IMPUGNED ASSESSMENT ORDER UNDER SECTION 153A, DATED 29 TH DECEMBER, 2010. 2. WITHOUT PREJUDICE, THE CIT(APPEALS) SHOULD HAVE HELD THAT IN AN ASSESSMENT MADE IN PURSUANCE TO SECTION 153A, NONE OF THE TWO ADJUSTMENTS WHICH ARE UPHELD BY THE CIT(APPEALS) CO ULD HAVE BEEN MADE BY THE AO. 3. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRC UMSTANCES OF THE CASE, THE CIT(APPEALS) ERRED IN INFERRING THAT THE SALE O F EQUITY SHARES WHICH ARE HELD BY THE ASSESSEE FOR 30 DAYS OR LESS WOULD GIVE RISE TO BUSINESS INCOME AND FURTHER ERRED IN HOLDING THAT OUT OF SHO RT TERM CAPITAL GAINS OF RS.17,19,75, A SUM OF RS.7,18,975 BE TAXED AS BU SINESS INCOME. 4. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE, THE CIT(A) ERRED IN UPHOLDING TOTAL DISALLOWA NCE OF CAR EXPENSES IT(SS)A NO.619 /AHD/2011 (BY REVENUE ) AND CO NO.9/AHD/2012(BY ASSESSEE) ACIT VS. SHRI AMIT RASIKBHAI PATEL ASST.YEAR 2008-09 - 4 - INCURRED BY THE ASSESSEE FOR SAFEGUARDING AND ENHAN CING HIS SHARE OF INCOME FROM THE FIRMS IN WHICH HE WAS A PARTNER. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) ERRED IN NOT ALLOWING RELIEF TO THE ASSESSEE IN REG ARD TO INTEREST UNDER SECTION 234B. 6. THE RESPONDENT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF CROSS OBJECTIONS EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE SAME. 6.1. GROUND NOS.1 & 2 ARE NOT PRESSED AND, THEREFOR E, THE SAME ARE DISMISSED AS SUCH. 7. SINCE WE HAVE DISMISSED THE REVENUES APPEAL IN IT(SS)A NO.619/AHD/2011 FOR AY 2008-09-SUPRA, AS NOT MAINTA INABLE, THEREFORE THE CROSS OBJECTION FILED BY THE ASSESSEE OUT OF RE VENUES APPEAL IS ALSO DISMISSED AS NOT MAINTAINABLE. HOWEVER, ASSESSEE W OULD BE AT LIBERTY TO FILE AN APPEAL AGAINST THE ORDER OF THE LD.CIT(A), IF SO ADVISED. 8. IN THE RESULT, REVENUES APPEAL AS WELL AS ASSES SEES CROSS OBJECTION BOTH ARE DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED IN THE COURT ON 27TH JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/ 01 /2016 IT(SS)A NO.619 /AHD/2011 (BY REVENUE ) AND CO NO.9/AHD/2012(BY ASSESSEE) ACIT VS. SHRI AMIT RASIKBHAI PATEL ASST.YEAR 2008-09 - 5 - 1.., .../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 234 5 / CONCERNED CIT 4. 5 ( ) / THE CIT(A)-I, AHMEDABAD 5. 6 7 &34 , 34- , 2 / DR, ITAT, AHMEDABAD 6. 79: ;( / GUARD FILE. / BY ORDER, '6 & //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 27.1.16 (DICTATION-PAD 3- PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.1.16 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. 27.1.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.1.16 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