The DCIT.,Circle-1(1)(1), Ahmedabad V. M/s. Adani Mining Pvt Ltd, Ahmedabad

MA 113/AHD/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1461 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 13-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Keywords: Rectification of order; Audit objection; Tax effect

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 113/AHD/2019 A.Y. 2 011-12 ( IN I.T.A. NO. 2209/AHD/2017 - A.Y. 2011-12 ) THE DY. COMMISSIONER OF INCOME TAX CIRCLE-1(1)(1), AHMEDABAD / VS. M/S. ADANI MINING PVT. LTD. 9 TH FLOOR, SHIKAR BUILDING, NEAR MITHAKHALI CIRCLE, NAVRANGPURA, AHMEDABAD - 380009 ./ ./ PAN/GIR NO. : AAFCA9521J ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI DILEEP KUMAR, SR.D.R. / RESPONDENT BY : SHRI BIREN SHAH, A.R. / DATE OF HEARING 06/12/2019 !'# / DATE OF PRONOUNCEMENT 16/12/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN FI LED AT THE INSTANCE OF REVENUE SEEKING RECTIFICATION OF ORDER DATED 30.07.2018 PASSED BY THE TRIBUNAL UNDER S. 254(1) OF THE ACT. 2. WHEN THE MATTER WAS CALLED FOR HEARING, ON THE M ISCELLANEOUS PETITION, THE LEARNED DR FOR THE REVENUE POINTED OU T THAT THE APPEAL M.A. NO. 113/AHD/19 [DCIT VS. M/S. ADANI MINING PVT. LTD.] A.Y. 2011-12 - 2 - OF THE REVENUE HAS BEEN DISMISSED ON ACCOUNT OF LOW TAX EFFECT HAVING REGARD TO CBDT CIRCULAR NO. 3 OF 2018 DATED 11.07.2018 WHEREBY THE REVENUE WAS DIRECTED TO REDUCE TAX LITI GATIONS WHERE THE TAX EFFECT DOES NOT EXCEED THE PRESCRIBED MONET ARY LIMIT. THE LEARNED DR FURTHER SUBMITTED THAT THE AFORESAID CIR CULAR OF CBDT ALSO PROVIDES FOR CERTAIN EXCEPTIONS WHERE THE CBDT CIRCULAR WILL NOT APPLY AND THE MATTER WILL BE REQUIRED TO BE ADJ UDICATED BY THE TRIBUNAL REGARDLESS OF THE LOW TAX EFFECT. THE CAS E OF THE ASSESSEE IS GOVERNED BY AUDIT OBJECTION DATED 12.11.2014 AND THEREFORE CBDT CIRCULAR WOULD NOT APPLY DESPITE THE TAX EFFEC T BEING RS.10,69,558/-. THE LEARNED DR ACCORDINGLY PRAYED FOR RECALLING OF THE ORDER OF THE ITAT IN ITA NO.2209/AHD/2017 CONCE RNING AY 2011-12 FOR ADJUDICATION ON MERITS. 3. THE LEARNED AR FOR THE ASSESSEE, ON THE OTHER HA ND, SUBMITTED THAT DISALLOWANCE OF EXPENDITURE AGGREGATING TO RS. 34,61,352/- MADE BY THE AO WAS NOT CLAIMED AS REVENUE EXPENDITU RE AT THE FIRST PLACE BY THE ASSESSEE. THEREFORE, THE DISALLOWANCE OF AN EXPENDITURE NOT CLAIMED AS DEDUCTION WAS PRIMA FACIE NOT PERMISSIBLE. THE CIT(A) HAS RIGHTLY GRANTED THE RE LIEF TO THE ASSESSEE AFTER HAVING TAKEN NOTE OF THE AFOREMENTIO NED FACTS. THEREFORE, A MATTER OF THIS TYPE WHERE THE DISALLOW ANCE HAS BEEN MADE ON EXPENDITURE WHICH HAS NOT BEEN CLAIMED AS D EDUCTION, THE RECALL OF ORDER WOULD BE A FUTILE EXERCISE AND WILL ONLY ADD TO PROTRACT LITIGATION. THE PURPOSE OF THE CBDT CIRCU LAR WOULD THUS BE DEFEATED IN SUCH TYPE OF MATER. 4. WE FIND MERIT IN THE PLEA OF THE ASSESSEE. THE EXPENDITURE HAVING NOT BEEN CLAIMED AS REVENUE ITEM OF DEDUCTIO N, HAS NO IMPACT ON THE TAXABLE INCOME OF THE YEAR. THE TAX AMOUNT INVOLVED IS QUITE LOW. WE DO NOT SEE ANY PURPOSE IN RECALLI NG SUCH STALE M.A. NO. 113/AHD/19 [DCIT VS. M/S. ADANI MINING PVT. LTD.] A.Y. 2011-12 - 3 - ISSUE. THE ACTION OF THE REVENUE IS SQUARELY OPPOS ED TO THE SPIRIT OF THE CBDT CIRCULAR. WE ARE NOT INCLINED TO ENTER TAIN SUCH MISCELLANEOUS PETITION. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 16/12/2019 S. K. SINHA ! / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 6/12/2019