The Assistant Commr. of Income Tax, Circle-2, RAJKOT-GUJARAT V. M/s Skill Precision Balls Pvt. Ltd., RAJKOT-GUJARAT

MA 17/RJT/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4153 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 8 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K CHAKRAVARTY
• Assessee Lawyers: M J RANPURA C A
• Keywords: Audit objection; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] - , !' #$, %& ' BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO.17/RJT/2014 AY 2005-06 ( IN ./ IN I.T.A. NO.575/RJT/2012 ) ( / ASSESSMENT YEAR : 2005-06) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2 RAJKOT / VS. M/S.SKILL PRECISION BALL PVT.LTD. 374, AJI GIDC PHASE-II 80FT. ROAD, RAJKOT + %& ./ ./ PAN/GIR NO. AADCS 1840 A ( +- / APPLICANT ) .. ( ./+- / RESPONDENT ) +- 0 % / APPLICANT BY : SHRI V.K. CHAKRAVARTY, DR ./+- 1 0 % / RESPONDENT BY : SHRI M.J. RANPURA, CA !23 1 & / DATE OF HEARING 29/012016 4' 1 & / DATE OF PRONOUNCEMENT 05/02/2016 % / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E REVENUE ON 26.5.2014 (ARISING OUT OF ITA NO.575/RJT/2012 FOR A Y 2005-06) SEEKING FOR RECALLING THE TRIBUNALS ORDER (ITAT RAJKOT BEN CH, RAJKOT) DATED 02/01/2014. 2. THE LD.DR SUBMITTED THAT THE TRIBUNAL HAD DISMIS SED THE APPEAL ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, THE APPEAL OF THE REVENUE FALLS UNDER THE EXCEPTIONAL CLAUSE OF THE CBDTS INSTRUCT ION NO.3/2011 DATED MA NO.17/RJT/2014 (IN ITA NO.575 /RJT/2012) ACIT VS. M/S.SKILL PRECISION BALLS PVT.LTD. ASST.YEAR 2005-06 - 2 - 09/02/2011 AS IN THE PRESENT CASE, THE ASSESSMENT W AS REOPENED ON THE BASIS OF AUDIT OBJECTION IN RESPECT OF ALLOWABILITY OF DEDUCTION U/S.80IB OF THE INCOME TAX ACT, 1961 OF RS.1,38,832/-. UN DER THIS FACT, THE SAID TRIBUNALS ORDER MAY BE RECALLED AND BE RESTORED TH E APPEAL TO ITS ORIGINAL NUMBER FOR HEARING AFRESH ON MERITS. 3. ON THE CONTRARY, THE LD.COUNSEL FOR THE ASSESSE E OPPOSED THE SUBMISSION MADE BY THE LD.DR AND SUBMITTED THAT EVE N ON MERIT, THE REOPENING OF THE ASSESSMENT ON THE BASIS OF AUDIT O BJECTION IS NOT SUSTAINABLE IN THE EYES OF LAW. 4. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE TRIBUNAL HAD DISMISSED THE REVENUES APPEAL SOLELY ON THE GROUND OF TAX EFFECT . THE LD.DR HAS POINTED OUT THAT THE REVENUES APPEAL FALLS UNDER T HE EXCEPTIONAL CLAUSE AS PER CBDTS INSTRUCTION NO.3/2011 DATED 09/02/201 1. THE TRIBUNAL IN PARA-2 OF ITS ORDER DISMISSED THE APPEAL BY OBSE RVING AS UNDER:- 2. HEARD PARTIES. IT HAS FAIRLY BEEN ADMITTED TH AT THE TAX EFFECT ON THE DISPUTED ADDITION IS RS.51,167/-. NO EXCEPTION HAS BEEN CARVED OUT IN THE PERMISSION ACCORDED U/S.253(2) OF THE I.T.ACT, 1961 (IN SHORT THE ACT) BY THE LD.CIT RAJKOT-II FOR FILING THE APPEAL BEFORE THE APPELLATE TRIBUNAL IN SUCH CASES WHERE TAX EFFECT IS BELOW RS .3,00,000/-. HAVING REGARD TO THE CBDT INSTRUCTION NO.3 OF 2011 DATED 0 9/02/2011 READ WITH SECTION 268A OF THE ACT, THE APPEAL IS DISMISS ED AS NOT MAINTAINABLE ON THE GROUND OF MONETARY LIMIT WITHOU T EXPRESSING ANY OPINION ON MERITS OF THE CASE IN VIEW OF THE JUDGME NT RENDERED BY THE JURISDICTIONAL HIGH COURT BY ITS ORDER DATED 24/08/ 2012 IN TAX APPEAL NO.1404 OF 2010 IN THE CASE OF CIT VS. SURESHCHANDR A DURGAPRASAD KHATOD (HUF). MA NO.17/RJT/2014 (IN ITA NO.575 /RJT/2012) ACIT VS. M/S.SKILL PRECISION BALLS PVT.LTD. ASST.YEAR 2005-06 - 3 - 4.1. FROM THE ABOVE, IT IS EVIDENT THAT THIS TRIBUN AL HAD RELIED ON THE CBDTS INSTRUCTION NO.3 OF 2011 DATED 09/02/2011 AN D AS PER PARA-8 OF CLAUSE(C) OF THE SAID INSTRUCTION, EVEN IN THE CASE OF LESSER MONETARY LIMIT WHERE REVENUE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT, SUCH DECISIONS ARE REQUIRED TO BE CONTESTED ON MERI T. THEREFORE, THERE IS A MISTAKE APPARENT FROM THE RECORD AS THE CLAUSE(C) OF THE CIRCULAR WAS NOT NOTICED WHILE DISPOSING THE REVENUES APPEAL. ACCORDINGLY, WE RECALL THE TRIBUNALS ORDER(SUPRA) AND THE REGISTR Y IS HEREBY DIRECTED TO FIX THE REVENUES APPEAL, I.E. ITA NO.575/RJT/2012 FOR AY 2005-06, TO ITS ORIGINAL NUMBER FOR HEARING AFRESH ON MERITS IN DUE COURSE, AFTER ISSUING NOTICE OF HEARING TO BOTH THE PARTIES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON FRIDAY THE 5 TH DAY OF FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- ( !' #$) ( ) %& ( MANISH BORAD ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD ; DATED 05/ 02 /2016 ..!, 2.!../ T.C. NAIR, SR. PS MA NO.17/RJT/2014 (IN ITA NO.575 /RJT/2012) ACIT VS. M/S.SKILL PRECISION BALLS PVT.LTD. ASST.YEAR 2005-06 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. +- / THE APPELLANT 2. ./+- / THE RESPONDENT. 3. # 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-III, RAJKOT 5. :2; .! , , /DR,ITAT, RAJKOT 6. ;FG H3 / GUARD FILE. / BY ORDER, /: . //TRUE COPY// / ( DY./ASSTT.REGISTRAR) & ' , / ITAT, RAJKOT 1. DATE OF DICTATION .. 4.2.16(DICTATION-PAD 5+ PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 4.2.16 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.05.2.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 05.2.16 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