The ACIT..Circle-5(2), Ahmedabad V. Nirav Discretionery Family Trust, Ahmedabad

ITSSA 85/AHD/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1209 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Audit objection; Tax effect
• Section: 154

Judgement Text

IT(SS)A NO.85/AHD/2018 NIRAV DISCRETIONARY FAMILY TRUST BLOCK PERIOD: 01.04.1995 TO 27.09.2001 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: JUSTICE P P BHATT, PRESIDENT AND PRAMOD KUM AR, VICE PRESIDENT] IT(SS)A NO.85/AHD/2018 BLOCK PERIOD: 01.04.1995 TO 27.09.2001 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5(2), AHMEDABAD. ...... ...... APPELLANT VS. NIRAV DISCRETIONARY FAMILY TRUST, .... RESPONDENT NIRMA HOUSE, ASHRAM ROAD, AHMEDABAD. [PAN: AAATN 1115 F] APPEARANCES BY MUDIT NAGPAL FOR THE APPELLANT HEMANSHU SHAH FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 04.06.2019 DATE OF PRONOUNCING THE ORDER : 04.06.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 08.01.2018, PASSED BY THE LEARNED C IT(A), AHMEDABAD IN THE MATTER OF ASSESSMENT UNDER SECTION 154 OF THE INCOME TAX ACT, 1961 FOR THE BLOCK PERIOD 01.04.1995 TO 27.09.2001, ON THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS TO ALLOW THE ASSESSEE FOR GRANT OF COMPENSATION QUANTIFIED ON THE FORM OF INTEREST ON INTEREST, ALTHOUGH THE LD. CIT(A) IS BEING A QUASI JUDICIAL AUTHORITY AND NOT A COURT, IS NOT EMPOWERED TO GRANT/COMPENSA TION IN ABSENCE OF ANY PROVISION IN THE ACT AND IN VIEW OF THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF GUJARAT FLU ORO CHEMICALS (2014) 42 TAXMAN.COM1(SC). 2. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. CIT(A) MAY BE SET- ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTENT. 2. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO BE DISMISSED ON ACCO UNT OF LOW TAX EFFECT IN VIEW OF THE RECENT CBDT CIRCULAR NO.3 OF 2018 DATED 11.07.2 018. THE LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT TH E TAX EFFECT INVOLVED IN THIS APPEAL IT(SS)A NO.85/AHD/2018 NIRAV DISCRETIONARY FAMILY TRUST BLOCK PERIOD: 01.04.1995 TO 27.09.2001 PAGE 2 OF 2 IS LESS THAN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR, BUT HE SUBMITS THAT IN VIEW OF PARA 10(A) OF THE CBDT INSTRUCTION DATED 11.07.2018, THE MATTER SHOULD BE DECIDED ON MERITS. IT IS SUBMITTED THAT THE RELIEF GRANTED IS CONTRARY TO CBDT INSTRUCTIONS. 3. WE ARE UNABLE TO SEE LEGALLY SUSTAINABLE MERITS IN THE PLEA OF THE LEARNED DEPARTMENTAL REPRESENTATIVE. IT IS ONLY WHEN VALID ITY OF A CBDT INSTRUCTION IS IN CHALLENGE, SUCH AS IN A WRIT PETITION, THIS EXCEPTI ON CLAUSE WILL COME INTO PLAY. HAVING PERUSED THE MATERIAL ON RECORD, WE DO NOT FI ND ANY OF THE EXCEPTION CLAUSES BEING APPLICABLE IN THE PRESENT CONTEXT. WE REJECT THE PLEA. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WHEN THIS APPEAL WAS TAKEN UP FOR HEARING, IT WAS NOTICED THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN V IEW OF THE RECENT CBDT CIRCULAR NO.3/2018 IN F.NO.279/MISC.142/2007-ITJ (PT) DATED 11 TH JULY, 2018, VIDE WHICH IT HAS BEEN DECIDED BY THE BOARD THAT NO DEPARTMENTAL APPEALS SHOULD BE FILED BEFORE THE TRIBUNAL IF THE TAX EFFECT BY VIRTUE OF THE COM MISSIONER OF INCOME-TAX (APPEALS)S ORDER IS BELOW RS. 20 LAKHS. THE BOARD HAS PROVIDE D EXEMPTIONS AT CLAUSE (10) OF THE INSTRUCTIONS WHEREIN IT HAS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE, WHERE THE CONSTITUTIONAL VALIDITY OF TH E PROVISIONS OF AN ACT/RULE IS UNDER CHALLENGE OR WHERE BOARDS ORDER, NOTIFICATION, INS TRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT OR WHERE THE ADDITION RELATES TO UNDISCL OSED FOREIGN ASSETS/BANK ACCOUNTS ETC. WE FIND THAT THE PRESENT CASE DOES N OT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX EFFECT IS LESS THAN RS.20 LAKHS. THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE AND HENCE DISMISSED. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 4 TH DAY OF JUNE, 2019. SD/- SD/- JUSTICE P P BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) AHMEDABAD, DATED THE 4 TH DAY OF JANUARY, 2019 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD