The Income Tax Officer, Ward-6(1), Surat V. M/s. Build Well, Surat

MA 179/AHD/2014

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5513 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 20-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R B SHAH
• Keywords: Retrospective amendment; Tax effect
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO.179/AHD/2014 IN ITA NO.429/AHD/2010 %& ' ()'/ ASSTT. YEAR: 2006-2007 INCOME TAX OFFICER WARD-6(1), SURAT. VS. BUILD WELL 18, ASHIYANA, AMBER COLONY UNN JAKAT NAKA NAVSARI ROAD, SURAT. PAN : AACFB 6376 N ( APPLICANT ) ( RESPONENT ) REVENUE BY : SHRI PRASOON KABRA, SR.DR ASSESSEE BY : SHRI R.B. SHAH, AR / DATE OF HEARING : 21/04/2017 / DATE OF PRONOUNCEMENT: 21/04/2017 67/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE REVENUE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRI BUNAL IN ITA NO.429/AHD/2010 DATED 27.3.2014. 2. IT IS POINTED OUT IN THE MA THAT THE LD.AO HAS M ADE AN ADDITION OF RS.37.76 LAKHS WITH THE AID OF SECTION 68 OF THE IN COME TAX ACT, 1961. THIS ADDITION WAS MADE ON THE GROUND THAT SOURCE AND NAT URE OF CASH CREDIT APPEARING AGAINST NAMES OF FOURTEEN PERSONS COULD N OT BE EXPLAINED BY THE ASSESSEE. DISSATISFIED WITH THE ASSESSMENT ORDER, THE ASSESSEE CARRIED THE MA NO.179/AHD/2014 2 MATTER IN APPEAL BEFORE THE LD.CIT(A). THE LD.CIT( A) HAS DELETED THE ADDITION TO THE EXTENT OF RS.10.5 LAKHS AND CONFIRMED THE BA LANCE. REVENUE AND THE ASSESSEE BOTH CAME UP BEFORE THE TRIBUNAL IN ITA NO .428/AHD/2010 AND 429/AHD/2010. BOTH THESE APPEALS HAVE BEEN DECIDED BY THE TRIBUNAL ON 27.3.2014. 3. IN THE MA IT HAS BEEN PLEADED THAT ONE OF THE CR EDITORS WAS SHRI SAMEER E. SURESHWALA, FROM WHOM A SUM OF RS.3.00 LAKHS WAS STATED TO BE TAKEN BY THE ASSESSEE. THIS WAS DELETED BY THE CIT(A). THE ITAT FAILED TO RECORD ANY FINDING QUA THIS CREDIT. THEREFORE, THE TRIBUNAL HAS COMMITTE D AN APPARENT ERROR WHILE DECIDING THE APPEAL OF THE REVENUE. 4. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTS ET SUBMITTED THAT ASSESSEE HAS NO OBJECTION IN ALLOWANCE OF THE APPLI CATION OF THE REVENUE, BECAUSE EVEN IF THE APPEAL IS BEING RESTORED TO ITS ORIGINAL NUMBER, AND THE APPEAL IS BEING FIXED FOR FRESH HEARING, THEN ALSO, ULTIMATELY, APPEAL OF THE REVENUE WILL NOT BE MAINTAINABLE, ON ACCOUNT OF REC ENT CBDT CIRCULAR NO. 21/2015 DATED 10.12.2015, VIDE WHICH THE REVENUE AU THORITY IS PROHIBITED TO FILE APPEAL BEFORE THE TRIBUNAL, IF TAX EFFECT BY V IRTUE OF RELIEF GIVEN BY LD.CIT(A) IS LESS THAN RS.10 LAKHS. ACCORDING TO H IM, THIS EXERCISE WILL BE FUTILE, BECAUSE THE APPEAL WILL BE ULTIMATELY DISMI SSED. 5. THE LD.DR, ON THE OTHER HAND, CONTENDED THAT THE SAID CBDT CIRCULAR IS NOT APPLICABLE TO PRESENT CASE, BECAUSE, THE DEP ARTMENT IS NOT SEEKING FOR RECALL OF ENTIRE ORDER, RATHER IT IS PRAYING FOR RE -ADJUDICATION ON LIMITED ISSUE AS TO WHETHER CASH CREDIT GIVEN BY SHRI SAMEER E. S URESHWALA WAS A GENUINE CASH CREDIT OR NOT. ACCORDING THE LD.DR THE TRIBU NAL HAS COMMITTED AN ERROR ON THIS LIMITED ISSUE, WHICH OUGHT TO BE R ECTIFIED/ RECALLED AND THEREFORE, THE CIRCULAR OF THE CBDT CITED BY THE LD .COUNSEL FOR THE ASSESSEE IS NOT APPLICABLE IN THIS SITUATION. MA NO.179/AHD/2014 3 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD. IN OUR OPINION, IN THE PRESENT PROCEEDINGS , WE ARE REQUIRED TO ADJUDICATE WHETHER THE TRIBUNALS ORDER WAS SUFFERI NG FROM APPARENT ERROR OR NOT. HOWEVER, LOOKING TO THE FACTS OF THE PRESENT CASE, EVEN IF THE COMPLETE ORDER WAS CONSIDERED, AS SUFFERING FROM APPARENT ER ROR, AND THE APPEAL OF THE REVENUE IS RESTORED TO ITS ORIGINAL NUMBER, THEN AL SO, IT IS NOT MAINTAINABLE BY VIRTUE OF RECENT CIRCULAR ISSUED BY THE BOARD. THE BASIC INTENTION OF CONTEMPLATING THE ABOVE CBDT CIRCULAR IS TO REDUCE QUANTUM OF LITIGATIONS BEFORE THE TRIBUNAL, BECAUSE COST AND TIME INVOLVED IN LITIGATIONS ARE FAR MORE THAN THE OVERALL RECOVERY BY VIRTUE OF RELIEF GIVEN BY THE CIT(A). IF WE CONSIDER THE CIRCULAR IN THAT BACKGROUND, THEN THE PRESENT MA EVEN IF ALLOWED AND THE ISSUE IS RESTORED FOR RE-ADJUDICATION THEN ALSO NO FRUITFUL PURPOSE WILL BE SERVED. IN OTHER WORDS, LET US ASSUME THAT TRIBU NAL HAS COMMITTED AN ERROR BY NOT ALLOWING THE APPEAL OF THE REVENUE AND RESTO RING THE ADDITIONS MADE BY THE AO. THE ORDER WILL BE RECALLED AND THE ISSU E OF DELETION OF RS.27,61,000/- WILL BE RESTORED FOR RE-ADJUDICATION . THE MOMENT THE ISSUE IS RESTORED IN THE REVENUES APPEAL, IT WILL SUFFER DI SABILITY OF ITS MAINTAINABILITY BY VIRTUE OF THE CBDT CIRCULAR, WHICH HAS BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT. WHAT IS USE OF THIS EXERCISE ? IF THE CIRCULAR WAS NOT MADE APPLICABLE WITH RETROSPECTIVE EFFECT THEN PROB ABLY THERE WAS SOME MERIT IN THE CONTENTION OF LD.DR. LOOKING TO THESE ASPECT S, WE DO NOT FIND ANY MERIT IN THE MA OF THE REVENUE. IT IS REJECTED. 7. IN THE RESULT MISC. APPLICATION OF THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 21 ST APRIL, 2017 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 21/04/2017