The Dy. Commissioner of Income Tax, Circle-3(1)(1), Ahmedabad V. Shri Dinesh Jasraj Jain, Ahmedabad

MA 143/AHD/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6674 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 10-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH SINGH
• Assessee Lawyers: T P HEMANI; P B PARMAR
• Keywords: Tax effect

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMEBR MISCELLANEOUS APPLICATION NO. 143/AHD/2016-AY 2006- 07 ( IN I.T.A. NO. 1693/AHD/2011-AY 2006-07 ) ACIT, CEN. CIR.2(2), AHMEDABAD / VS. SHRI DINESH JASRAJ JAIN SWAGAT BUNGLOWS, NR. PARIMAL GARDEN, AHMEDABAD / / PAN/GIR NO. : ABNPJ6717D ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SAURABH SINGH, SR. D.R / RESPONDENT BY : SHRI T. P. HEMANI & SHRI P. B. PARMAR, A.R. / DATE OF HEARING 15/06/2018 !'# / DATE OF PRONOUNCEMENT 15/06/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D AT THE INSTANCE OF REVENUE SEEKING RECTIFICATION OF THE OR DER OF THE TRIBUNAL IN ITA NO. 1693/AHD/2011, ORDER DATED 26.02.2016 PA SSED BY THE TRIBUNAL UNDER S.254(2) OF THE INCOME TAX ACT, 1961 ; (THE ACT). M.A. NO. 143/AHD/16 [ACIT VS. SHRI DINESH J. JAIN] A.Y. 2006-07 - 2 - 2. WHEN THE RECTIFICATION APPLICATION WAS CALLED FO R HEARING, THE LEARNED DR FOR THE REVENUE SUBMITTED THAT THE TRIBU NAL HAS DISMISSED THE APPEAL OF THE REVENUE BY PLACING RELIANCE UPON CBDT CIRCULAR NO. 21 OF 2015 OBSERVING THAT TAX EFFECT INVOLVED I N THE REVENUES APPEAL IS LESS THAN RS.10 LAKHS AND THEREFORE, APPE AL IS NOT MAINTAINABLE. THE LEARNED DR ADVERTED OUR CONTENTI ON TO A WORKING PLACED IN THIS REGARD DATED 25.10.2017 ON BEHALF OF THE REVENUE AND POINTED OUT THAT TAX EFFECT WORKS OUT TO RS.10,09,8 00/- AND THUS, DISMISSAL UNDER THE SHELTER OF THE CBDT CIRCULAR IS NOT PERMISSIBLE IN LAW AND THE MATTER REQUIRES TO BE RECALLED FOR ADJU DICATION ON MERITS. 3. THE LEARNED AR FOR THE ASSESSEE, ON THE OTHER HA ND, VEHEMENTLY OPPOSED THE RECTIFICATION APPLICATION FILED ON BEHA LF OF THE REVENUE AND SUBMITTED THAT THE AFORESAID WORKING SHOWING DE MAND OF RS.10.09 LAKHS WORKED OUT BY THE REVENUE INCLUDES EDUCATION CESS OF RS.19,800/- ON THE DISPUTED AMOUNT. IT WAS SIMILAR LY POINTED OUT THAT THE REVENUE HAS ALSO INCLUDED SURCHARGE OF RS.90,00 0/- ON THE TAX CALCULATED OF DISPUTED ADDITIONS/DISALLOWANCES. TH E LEARNED AR SOUGHT TO DISTINGUISH THE EXPRESSION TAX VIS--VI S SURCHARGE AND EDUCATION CESS. THE LEARNED AR SUBMITTED THAT TH E SURCHARGE AND EDUCATION CESS ARE BEING LEVIED WITH ALTOGETHER D IFFERENT OBJECTIVE BY THE RESPECTIVE FINANCE ACTS AND DO NOT FORM PART OF THE EXPRESSION TAX. THE LEARNED AR PLACED RELIANCE UPON THE DEC ISION OF THE M.A. NO. 143/AHD/16 [ACIT VS. SHRI DINESH J. JAIN] A.Y. 2006-07 - 3 - HONBLE SUPREME COURT IN CIT, CENTRAL VS. VATIKA TO WNSHIP PVT. LTD. 367 ITR 466 TO SUBMIT THAT THE JUDICIAL PRECEDENT H AS OBJECTIVELY DEALT WITH THE EXPRESSIONS AND EXCLUDED SURCHARGE FROM TH E AMBIT OF TAX. THE LEARNED AR NEXT SUBMITTED THAT THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CASE OF ITO VS. SAROJBEN G. SHAH & ORS. IN M .A. NO.89/AHD/2016 ARISING IN ITA NO.2314/AHD/2015, ORD ER DATED 06.01.2017 WAS ALSO SEIZED WITH THE IDENTICAL QUEST ION AND FOUND THAT TAX AND SURCHARGE ARE DIFFERENT NOMENCLATURES. IT WAS SUBMITTED THAT THE TRIBUNAL FOUND THAT FOR THE PURPOSES OF CALCULA TION OF TAX EFFECT WITH REFERENCE TO CBDT CIRCULAR, THE SURCHARGE LEVI ABLE ON INCOME TAX IS NOT REQUIRED TO BE CONSIDERED. ANOTHER REFERENC E TO THE DECISION OF CO-ORDINATE BENCH IN ACIT VS. DALLAS FINANCE LTD., ORDER DATED 07.04.2017 WAS MADE WHEREIN IT WAS FOUND THAT SURCH ARGE AND EDUCATION CESS ARE NOT LIABLE TO BE INCLUDED IN THE EXPRESSION TAX FOR THE PURPOSES OF AFORESAID CBDT CIRCULAR. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. REVENUE CLAIMS THAT THE ORDER OF THE ITAT REQUIRES TO BE RE CALLED IN EXERCISE OF POWER CONFERRED UNDER S.254(2) OF THE ACT FOR ADJUD ICATION ON MERITS OWING TO THE FACT THAT CBDT CIRCULAR NO. 21 OF 2015 GIVING RELIEF TO ASSESSEE WHERE THE TAX EFFECT IS LESS THAN RS.10 LA KHS, IS NOT APPLICABLE. IT WAS CONTENDED ON BEHALF OF THE REVE NUE THAT THE TAX INCLUDES SURCHARGE AND EDUCATION CESS ON THE DISPUT ED AMOUNT AND M.A. NO. 143/AHD/16 [ACIT VS. SHRI DINESH J. JAIN] A.Y. 2006-07 - 4 - ONCE THESE LEVIES ARE INCLUDED THE TAX EFFECT INVOL VED IS RS.10 LAKHS OR MORE. IT IS A CASE OF THE ASSESSEE, ON THE OTHE R HAND, THAT THE TAX DOES NOT INCLUDE SURCHARGE AND EDUCATION CESS. IN THE LIGHT OF THE JUDICIAL PRECEDENTS ON THE ISSUE, WE FIND MERIT IN THE PLEA OF THE ASSESSEE FOR NON-INCLUSION OF SURCHARGE/EDUCATION C ESS FOR THE PURPOSES OF DETERMINATION OF TAX EFFECT. THEREFORE , THE RECTIFICATION APPLICATION FILED BY THE REVENUE UNDER S.254(2) OF THE ACT IS NOT FOUND TO BE MAINTAINABLE. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. SD/- SD/- ( MADHUMITA ROY) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 15/06/2018 TRUE COPY 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 15 /06/2018