The ITO, Ward-1(2)(3), Vadodara V. Shri Vaidya Panalal Manilal (HUF), Vadodara

MA 192/AHD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5494 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 24-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Keywords: Audit objection; Tax effect
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE ITO, WARD - 1(2)(3), 2 ND FLOOR, ROOM NO. 206, AAYAKAR BHAVAN, RACE COURSE CIRCLE, VADODARA (APPELLANT) VS THE VAIDYA PANALAL MANILAL (HUF), 34, SHIVASHRAYA SOCIETY, VASNA, VASNA ROAD, VADODARA PA N: AABHV6095F (RESPONDENT) REVENUE BY : S H RI RAJESH MEENA , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 07 - 04 - 2 017 DATE OF PRONOUNCEMENT : 30 - 05 - 2 0 17 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THE REVENUE HAS FILED THIS MISCELLANEOUS APPLICATION BEARING NO. 192/AHD/2016 AGAINST THE ORDER OF THE ITAT VIDE ITA NO. 3410 /AHD/2005 DATED 16 - 12 - 2015 FOR THE ASSESSMENT YEAR 2009 - 10. THE CONTENT OF THE MA IS AS FOLLOWS: - M.A. NO. 192/AHD/2016 ( I T A NO . 3410 / A HD/20 15) A SSESSMENT YEAR 200 9 - 10 M.A. NO. 192/AHD/2016 IN I.T.A NO. 3410 /AHD/20 15 A.Y.2 009 - 10 PAGE NO ITO VS. VAIDYA PANALAL MANILAL (HUF) 2 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(APPEALS) ERRED IN BY DIRECTING THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S. 54 OF THE I.T.ACT,1961 WHEN THE ASSESSEE - HUF HAS NOT PURCHASED THE RESIDEN TIAL HOUSE IN ITS OWN NAME.' 2. THE APPEAL TO HON'BLE I.T.A.T. BY WAY OF MISC. APPLICATION IS BEING FILED ON ACCOUNT OF THE FACT THAT HON'BLE 1TAT WHILE DISMISSING THE APPEAL OF THE REVENUE IN VIEW OF THE BOARDS CIRCULAR NO. 21/2015, HAD FAILED TO TAKE CO GNIZANCE OF THE FACT THAT IN THE GROUNDS OF APPEAL AGAINST THE ABOVE REFERRED ORDER OF CIT(A), A SPECIFIC NOTE WAS RECORDED AS UNDER: 'NOTE : IN VIEW OF CBDT'S INSTRUCTION NO. 5/2014 DATED.10/7/2014, THE APPEAL IS BEING AUTHORIZED EVEN THOUGH THE TAX EFFE CT IS BELOW THE SPECIFIED MONETARY LIMIT TO FILE APPE AL BEFORE ITAT AS REVENUE AUDIT OBJECTION HAS BEEN ACCEPTED IN THIS CASE.' RELIEF CLAIMED IN M.A. IT IS THEREFORE PRAYED THAT THE HON'BLE I.T.A.T. 'A - L' BENCH, AHMEDABAD MAY RECALL ITS ORDER DATED 16 - 1 2 - 2015 IN I.T.A. NO. 2323/AHD/2015 AND 220 OTHERS, IN THE CASE OF SHRI VAIDYA PANALAL MANILAL [HUF], A.Y. 2009 - 10 [INCLUDED IN I.T.A. NO. 302/AHD/2014, AS REFLECTED IN SR. NO. 84, OF ITA NO. 3410/AHD/2015], WHEREIN THE HON'BLE I.T.A.T. 'A - L' BENCH, ALHMEDA BAD DISMISSED THE APPEAL OF THE DEPT ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF BOARD'S CIRCULAR NO. 21/2015 DT. 10 - 12 - 2015. IT IS ALSO PRAYED THAT THE HON'BLE I.T.A.T. 'A - L' BENCH, AHMEDABAD MAY KINDLY DECIDE THE GROUNDS OF APPEAL RAISED BY THE DEPT ON MERI TS OF THE CASE, CONSIDERING THE FACT THAT THOUGH THE TAX EFFECT OF RS. 2,89,286/ - IN THE ASSESSEE'S CASE FOR A.Y. 2009 - 10 IS LESS THAN THE MONETARY LIMIT FOR FILING APPEAL, THE CASE IS COVERED BY EXCEPTION OF INSTRUCTION ON MONETARY LIMIT ( I.E. ACCEPTANCE OF REVENUE AUDIT OBJECTION) AS PER BOARD'S INSTRUCTION NO. 05/2014 AND BOARD'S CIRCULAR NO. 21/2015 DT. 10 - 12 - 2015, AS MENTIONED ABOVE. M.A. NO. 192/AHD/2016 IN I.T.A NO. 3410 /AHD/20 15 A.Y.2 009 - 10 PAGE NO ITO VS. VAIDYA PANALAL MANILAL (HUF) 3 2. DURING THE COURSE OF THE APPELLATE PROCEEDINGS THE LEARNED DR HAS CONTENDED THAT THE TAX EFFECT IN THIS CAS E WAS BELOW THE PRESCRIBED MONETARY LIMIT F O R FILING APPEAL , HOWEVER , THE CASE WAS COVERED BY THE EXCEPTION OF INSTRUCTION ON MONETARY LIMIT FOR ACCEPTANCE OF REVENUE AUDIT OBJECTION AS PER CBDT CIRCULAR NUMBER 21/2015 DATED 10TH OF DECEMBER 2015. 3. WE HAVE GONE THROUGH THE FACTS REPORTED IN THE MISCELLANEOUS APPLICATION AND ALSO THE MATERIAL ON RECORD. WE HAVE NOTICED THAT IN THIS CASE THE APPE AL OF THE REVENUE WAS DISMISSED VIDE ITA NO.302/AHD/2014 BY THE COORDINATE BENCH BECAUSE OF LOW TAX EFFECT ON THE BASIS OF ABOVE REFERRED CIRCULAR. WE HAVE PERUSED THE ORDER OF THE COORDINATE BENCH AND NOTICED THAT AT PAGE 6 OF THIS ORDER THE RELEVANT PARAGRAPH OF THE CIRCULAR WAS MENTIONED STATING THAT THE REVENUE AUTHORITIES WILL HAVE THE LIBERTY TO APPROACH THE TRIBUNAL UPON NECESSARY VERIFICATION TO RECALL THE DISMISSAL OF APPEAL AND TO SEEK A RESTORATION OF THE SAME IN THE CASES IN WHICH IT CAN BE DEMONSTRATED THAT APPEAL ARE COVERED BY THE EXCEPTIONS SET OUT IN PARAGRAPH EIGHT OF THE SAID CIRCULAR .WE FIND THAT THE CASE OF THE ASSESSEE IS COVERED WITH THE EXCEPTION AVAILABLE IN THE CIRCULAR IN THE CASES WHERE REVENUE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT. 4. AFTER CONSIDERING THE ABOVE STATED FACTS AND CIRCUMSTANCES WE RECALLED T HE ORDER OF THE COORDINATE BENCH MADE IN THE CASE OF THE ASSESSEE AND REGISTRY IS DIRECTED TO FIX THE NEXT DATE OF HEARING AFTER INTIMATING THE PARTIES. M.A. NO. 192/AHD/2016 IN I.T.A NO. 3410 /AHD/20 15 A.Y.2 009 - 10 PAGE NO ITO VS. VAIDYA PANALAL MANILAL (HUF) 4 5. IN THE RESULT , MA OF THE REVENUE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 30 - 05 - 201 7 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 30 /05 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,