The ITO, Ward-3, Gandhinagar V. M/s. Orient Spa Pvt. Ltd., Gandhinagar

MA 20/AHD/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6823 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 21-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V.K. SINGH
• Keywords: Tax effect; Reasonable cause; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “D” BENCH (Conducted Through Virtual Court) Before: Shri Rajpal Yadav, Vice President And Ms. Annapurna Gupta, Accountant Member Th e ITO, Ward-3, Gandhinagar (Appellant) Vs Orient Spa Ltd., Camb ay Squ are, GID C Electronic Estate, Sector-2 5, Gandhin agar PAN: AAA CO9963 B (Resp ondent) Revenue by : Shri V. K. Sing h, Sr. D. R. Asses see b y : None Date of hearing : 03-12 -2 021 Date of pronouncement : 08-12 -2 021 आदेश /ORDER PER : ANNAPURNA GUPTA, ACCOUNTANT MEMBER:- Vide the impugned application, the Department seeks to recall the order passed by the ITAT in the appeal filed by the Department in ITA No. 1512/Ahd/2016 which was dismissed on account of low tax effect involved in lieu of the CBDT Circular No. 17 of 2019 dated 8-8- 2019 requiring Department to withdraw all appeals filed before the M.A. No. 20/Ahd/2020 (Arising out of ITA No. 1512/Ahd/2016) Assessment Year 2011-12 M.A. No. 20/Ahd/2020 (Arising out of I.T.A No. 1512/Ahd/2016) A.Y 2011-12 Page No ITO vs. Orient Spa Ltd. 2 ITAT involving tax effect below Rs. 50 lacs. The ITAT’s order in this regard is dated 27-08-2019. 2. The contention of the Department before us is that the impugned appeal fell within the exception carved out in the CBDT Circular for withdrawal of appeals, falling in para 10(f) of the said Circular wherein cases where prosecution has been filed by the Department and is pending in the court, the same has been directed to be contested on merits notwithstanding that the tax effect entailed was less than the monetary limit. Reference was made to the CBDT Circular No. 3/2018 dated 11-07-2018 and its subsequent amendment dated 20 th August, 2018 carving out the aforesaid exception at para 10(f) as under:- “10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limit specified in para 3 above, there is no tax effect. (a).... (b).... ©.... (d).... (f). Cases where prosecution has been filed by the Department and is pending in the court” 3. As evidence of the prosecution filed by the Department in the case of the assessee, a copy of the complaint filed by the Department with the Metropolitan Magistrate Ahmedabad dated 27-1-2016 was filed before us and it was pointed out therefrom that complaint was M.A. No. 20/Ahd/2020 (Arising out of I.T.A No. 1512/Ahd/2016) A.Y 2011-12 Page No ITO vs. Orient Spa Ltd. 3 filed for the offence punishable u/s 276CC of the Income Tax Act on account of failure to file the income tax return for assessment year 2011-12 in time without any reasonable cause. Copy of the daily status of the case before the Additional Chief Metropolitan Magistrate was also filed pointing therefrom that the proceedings were initiated on 06- 09-2016 and were still pending. It was therefore pointed out that since the impugned appeal fell in the exceptions, the same could not have been withdrawn on account of low tax effect and the appeal therefore needed to be recalled for hearing. 4. None appeared on behalf of the assessee despite notice served upon the assessee on 23-09-2021 by affixture on the main gate of the premises of the assessee by the Inspector, Income Tax. letter addressed by the Income Tax Officer, Ward-1, Ahmedabad dated 27-09-2011, to this effect, was filed before us enclosing the original acknowledgement regarding the service of notice in the impugned case and the report of the Inspector, Panchnama and copies of the photo taken of the affixture. 4.1 In view of the above, since the Department has suitably demonstrated before us that the impugned appeal of the department fell within the exceptions carved out by the CBDT Circular for withdrawal of the appeals involving low tax effect, on account of prosecution being filed in the present case by the Department against the assessee which M.A. No. 20/Ahd/2020 (Arising out of I.T.A No. 1512/Ahd/2016) A.Y 2011-12 Page No ITO vs. Orient Spa Ltd. 4 was still pending, we agree that the dismissal of the appeal on account of low tax effect by the ITAT was erroneous. 4.2 Accordingly, we direct the order passed in the impugned case in ITA No. 1512/Ahd/2016 dated 27-08-2019 to be recalled for hearing afresh. Registry is directed to fix the appeal for hearing in due course. 5. In the result, the Miscellaneous Application of the Revenue is allowed. Order pronounced in the open court on 08-12-2021 Sd/- Sd/- (RAJPAL YADAV) (ANNAPURNA GUPTA) VICE PRESIDENT ACCOUNTANT MEMBER Ahmedabad : Dated 08/12/2021 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/ आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद