The ITO, Ward-1(1)(2), Ahmedabad V. Brij Basant Hospitals Pvt. Ltd., Ahmedabad

MA 188/AHD/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7048 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 17-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APOORVA BHARDWAJA
• Assessee Lawyers: M K PATEL
• Keywords: Audit objection
• Section: 148

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO.188/AHD/2016 IN ./ ITA NO. 3101/AHD/2015 / ASSESSMENT YEAR: 2010-11 ITO, WARD-1(1)(2) AMBAWADI AHMEDABAD. VS BRIJ BASANT HOSPITALS P.LTD. 23, HATKESH SOCIETY DARPAN FIVE ROADS AHMEDABAD. PAN : AABCB 7677 C / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI APOORVA BHARDWAJA, SR.DR ASSESSEE BY : SHRI M.K. PATEL, AR / DATE OF HEARING : 07/12/2018 /DATE OF PRONOUNCEMENT : 16/ 01/2019 O R D E R PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE REVENUE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRIBUNAL DATED 15.1.2016 PASSED IN ITA NO.3101/AHD/2015. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT OF THE ASSESSEE WAS REOPENED BY WAY OF A NOTICE UNDER SECTION 148 DATED 21.3.2014. ADDITION ON ACCOUNT OF NON-DEDUCTION OF TDS TOWARDS PAYMENT MADE TO GARVI GUJARAT PUBLICATIONS LTD. WAS SOUGHT TO BE MADE. ULTIMATELY, AN ADDITION OF RS.65,000/- WAS MADE. ON APPEAL, TH E LD.CIT(A) DELETED MA NO.188/AHD/2016 - 2 - THIS ADDITION BY OBSERVING THAT DUE DATE OF FILING OF RETURN WAS 30.9.2010. THE ASSESSEE HAS PAID TDS IN THE GOVERNMENT TREASUR Y ON 19.8.2010. FOLLOWING JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. ROYAL BUILDERS, 40 TAXMANN.COM 464, THE LD.CIT( A) HAS DELETED DISALLOWANCE BY OBSERVING THAT TDS WAS PAID BEFORE DUE DATE OF FILING OF RETURN. AGGRIEVED WITH THIS, REVENUE CAME UP BEFOR E THE TRIBUNAL. ADDITION OF RS.65,000/- WAS DELETED SINCE THE TAX E FFECT ON THE APPEAL WAS NOT MORE THAN RS.25,000/-. HENCE, TRIBUNAL HAS DISMISSED THE APPEAL BY FOLLOWING INSTRUCTION NO.21/2015. IN THE PRESENT MA, REVENUE HAS PLEADED THAT THIS CASE FALLS WITHIN THE EXCEPTION PROVIDED AT SERIAL NO.8 OF THE INSTRUCTION NO.21 OF 2015. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD. THE EXCEPTIONS PROVIDED AT SERIAL NO.8 OF THE INSTRUCTION READS AS UNDER: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISI ONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION O R CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BE EN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FOREIG N ASSETS/ BANK ACCOUNTS. 4. A PERUSAL OF THE APPLICATION WOULD SHOW THAT NOW HERE REVENUE HAS CARVED OUT IN WHICH EXCEPTION THIS CASE FALLS. PROBABLY, THE ASSESSMENT OUGHT TO HAVE BEEN REOPENED ON ACCOUNT O F AUDIT OBJECTION, THE LD.CIT(A) HAS NOT QUASHED THE REOPENING. THE L D.CIT(A) HAS MA NO.188/AHD/2016 - 3 - ALLOWED THE RELIEF ON MERIT BY HOLDING THAT TDS WAS PAID WITHIN DUE DATE. I FAILED TO UNDERSTAND HOW THIS APPLICATION HAS BEEN PROCESSED BY THE REVENUE FOR FILING BEFORE THE TRIBUNAL. THE TA X EFFECT IS LESS THAN RS.25,000/- WAS BEING AGITATED FIRST IN THE APPEAL, AND THEN NOW BY WAY OF MISC APPLICATION. THE CONCERNED PERSON IN THE D EPARTMENT HAS NOWHERE POINTED OUT IN WHICH EXCEPTION OF THE INSTR UCTION THE PRESENT MA FALLS IN. THIS IS SHEER WASTE OF RESOURCES. WI TH THE ABOVE OBSERVATIONS, THIS MA IS DISMISSED. 5. IN THE RESULT, MISC. APPLICATION OF THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 16 TH JANUARY, 2019. SD/- (RAJPAL YADAV) JUDICIAL MEMBER