The ITO, Ward-2(1)(2), Ahmedabad V. Ken Securities Ltd., Ahmedabad

MA 112/AHD/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0576 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 26-05-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Assessee Lawyers: PF JAIN
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (VIRTUAL COURT) BEFORE: SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI AMARJIT SINGH, ACCOUNTANT MEM BER THE ITO, WARD-2(1)(2), AHMEDABAD (APPELLANT) VS KEN SECURITIES LTD., C/O PARAS F JAIN C.A. 102, 1 ST FLOOR, DWARKESH COMPLEX, OPP. PATEL VAS, MITHAKHALI, AHMEDABAD-6 PAN: AAACK6985D) (RESPONDENT) REVENUE BY: SHRI R.R. MAKWANA, SR. D.R. ASSESSEE BY: SHRI P.F. JAIN, A.R. DATE OF HEARING : 05-02-2021 DATE OF PRONOUNCEMENT : 05-02-202 1 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED A T THE INSTANCE OF THE REVENUE POINTING OUT APPARENT ERROR IN THE ORDE R OF THE TRIBUNAL DATED 14-11-2019 PASSED IN IT(SS)A 202/AHD/2017. M.A. NO. 112/AHD/2020 (IT(SS)A NO. 202/AHD/2017) ASSESSMENT YEAR 2006-07 M.A. NO. 112/AHD/2020 A.Y. 2006-07 PAGE NO ITO VS. KEN SECURITIES LTD. 2 2. IN PARA 4 OF MISCELLANEOUS APPLICATION, REVENUE HAS PLEADED AS TO HOW TRIBUNALS ORDER IS SUFFERING FROM ERROR. THI S PARA IS READ AS UNDER:- 4. PERUSAL OF THE ITAT ORDER DATED 14.11.2019 RE VELS THAT HON'BLE ITAT HAS NOT GONE INTO THE MERITS OF THE MATTER. THE HON'BLE ITAT HAS NOT ADJU DICATED ANY ISSUE ON MERITS BUT RELYING ON BOARD'S INSTRUCTION NO 03/2018 DATED 11/07/2018 AND SUBSEQUENT VIDE LETTER DT.20.08.2018 AND CIR. NO. 17/2019 DT.08.08.2019, DISPOSED OFF THE AP PEAL FILED BY THE REVENUE STATING 'NOT CONSIDERING THE SAID CIRCULAR APPEAL IS NOT MAINTAI NABLE IN VIEW OF THE TAX EFFECT INVOLVED IN THE CASE IS BELOW THE PRESCRIBED MONETARY LIMIT.' HOWEV ER, ON VERIFICATION OF THE CASE RECORDS, IT IS SEEN THAT TAX EFFECT INVOLVED IS RS.76,07,160/-(TOT AL TAX RS.38,03,580/- AND PENALTY U/S.271(L) (C) RS.38,03,580). AND THEREFORE THE APPEAL IS REQUIRED TO BE RESTORED BY WAY OF FILING MISCELLANEOUS APPLICATION. A PERUSAL OF THE RECORD WOULD INDICATE THAT VIDE OR DER DATED 20 TH JAN, 2017, THE LD. CIT(A) HAS DECIDED TWO APPEALS I.E. ONE FOR CHALLENGING THE QUANTUM ADDITION AND THE OTHER LEVY OF PENALTY U/S. 271(1)( C). THE DISPOSAL OF THE TWO APPEALS AT THE END OF LD. CIT(A) WAS FOR THE CO NVENIENCE OF ADJUDICATION BUT ORDER OF THE LD. CIT(A) IS INDEPENDENTLY EXECUT ABLE IN BOTH THE PROCEEDINGS I.E. QUANTUM ADDITION AS WELL AS PENALT Y IMPOSED U/S. 271(1)(C). THE REVENUE SHOULD HAVE FILED TWO SEPARATE APPEALS CHALLENGING THE COMMON ORDER OF THE LD. CIT(A). HAD THAT BEEN SO THEN TAX EFFECT WOULD HAVE BEEN ASSESSED SEPARATELY ON BOTH THE APPEALS AND BOTH WO ULD HAVE BEEN DISMISSED. THE REVENUE CANNOT CLUB TWO DEMANDS ON E BY WAY OF QUANTUM ADDITION AND THE OTHER BY WAY OF PENALTY FOR CALCUL ATING THE TAX EFFECT ON THE ORDER OF LD. CIT(A). IT IS FURTHER OBSERVED THAT, FOR EXAMPLE, HAD REVENUE CHALLENGED ADDITION TO THE INCOME OF THE ASSESSEE I N THE QUANTUM APPEAL WHOSE TAX EFFECT HAS BEEN CALCULATED AT RS. 38,03,5 80/- BY THE REVENUE IN ITS MISCELLANEOUS APPEAL AND THIS APPEAL IF LISTED BEFO RE THE TRIBUNAL THEN IT WOULD HAVE DISMISSED SIMPLY FOR THE REASON THAT TAX EFFECT BY VIRTUE OF RELIEF GIVEN BY THE LD. CIT(A) WAS RS. 38,03,580/- WHICH I S LESSER THE MONETARY LIMIT OF RS. 50 LACS FOR CHALLENGING THE ORDER OF T HE LD. CIT(A). IF DELETION OF QUANTUM ADDITION IS BEING UPHELD THEN PENALTY WOULD AUTOMATICALLY NOT BE M.A. NO. 112/AHD/2020 A.Y. 2006-07 PAGE NO ITO VS. KEN SECURITIES LTD. 3 LEVIABLE. THEREFORE, EVEN IF LOOKING FROM THAT ANG LE, THIS PROCEDURAL ERROR ALL ALONG THE APPEAL AS WELL AS CALCULATION OF THE SUBS TANTIAL TAX, BOTH THE APPEALS ARE NOT MAINTAINABLE. HENCE, THE MISCELLAN EOUS APPLICATION IS DISMISSED. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05-02-2021 SD/- SD/- (RAJPAL YADAV) (AMARJIT SINGH) VICE PRESIDENT A CCOUNTANT MEMBER AHMEDABAD : DATED 05/02/2021 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,