The DCIT, Circle-2, JUNAGADH V. Shri Dinesh Dinkarrai Davada, AMRELI

MA 28/RJT/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9558 (ITAT-RAJKOT)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-10-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DM RINDANI
• Keywords: Tax effect

Judgement Text

: : IN THE INCOME TAX APPELLATE TRIBUNAL: RAJKOT BENCH: RAJKOT . .. . . . . . . .. . . . . . # # # # BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTA VA AM M.A. NO.28/RJT/2012 (ARISING OUT OF ORDER IN ITA NO.148/RJT/2011) / ASSESSMENT YEAR 2004-05 DCIT V. JAYESH DINKARRAI DAVDA CIRCLE-2, PROP. OF NILAM TEA CORNER JUNAGADH TOWER ROAD, DANA BAZAR, AMRELI PAN: ACDPD8527A DATE OF HEARING: 05.10.2012 DATE OF PRONOUNCEMENT: 30.10.2012 FOR THE REVENUE: AVINASH KUMAR, DR FOR THE ASSESSEE: D M RINDANI, FCA / // / ORDER . .. . . . . . /D. K. SRIVASTAVA: THE DEPARTMENT HAS FILED THE PRESENT MISCELLANEOUS APPLICATION SEEKING RESTORATION OF IT S APPEAL BEARING ITA NO.148/RJT/2011 (A.Y. 2004-05), WHICH WAS EARLIER D ISMISSED IN LIMINE BY THIS TRIBUNAL, ON THE GROUND THAT THE TAX EFFECT WAS LES S THAN RS. 3 LAKHS. THE OPERATIVE PART OF THE ORDER PASSED BY THIS TRIBUNAL ON 27-04-2012 READS AS UNDER:- 2. AT THE TIME OF HEARING, THE LD. AUTHORIZED REPR ESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE APPEAL FILED BY THE REV ENUE ON 19-04-2011 BEFORE THIS TRIBUNAL WAS NOT MAINTAINABLE INASMUCH AS THE TAX EFFECT INVOLVED WAS JUST BELOW RS.3 LAKHS. THE LD. DEPARTM ENTAL REPRESENTATIVE SUPPORTED THE AFORESAID SUBMISSION MADE BY THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE. THUS BOTH THE PART IES AGREE THAT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE FOR THE AFORE-STATED REASON. IN THIS VIEW OF THE MATTER, THE APPEAL FILE D BY THE DEPARTMENT IS HELD TO BE NOT MAINTAINABLE AND IS ACCORDINGLY DISM ISSED. 2. THE DEPARTMENT HAS NOW COME UP WITH THE MISCELLA NEOUS APPLICATION STATING THAT THE TAX EFFECT INVOLVED IN THE SAID AP PEAL IS MORE THAN RS. 3 LAKHS AND THEREFORE THIS TRIBUNAL HAS COMMITTED A MISTAKE IN DISMISSING THE DEPARTMENTS APPEAL IN LIMINE ON THE GROUND THAT TA X EFFECT WAS LESS THAN RS.3 LAKHS. THE RELEVANT PART OF THE MISCELLANEOUS APPLI CATION READS AS UNDER:- 5. THE HON. ITAT VIDE ORDER DATED 27/04/2012 IN IT A NO. 148/RJT/2011, HAS DISMISSED THE APPEAL HOLDING THAT - 2 M A 28/RJT/2012 AT THE TIME OF HEARING, THE LD. AUTHORIZED REPRESE NTATIVE FOR THE ASSESSEE SUBMITTED THAT THE APPEAL FILED BY THE REV ENUE ON 19-04- 2011 BEFORE THIS TRIBUNAL WAS NOT MAINTAINABLE INAS MUCH AS THE TAX EFFECT INVOLVED WAS JUST BELOW RS.3 LAKHS. THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE AFORESAID SUBMISSION MADE BY THE LD. AUTHORIZED REPRESENTATIVE FOR THE A SSESSEE. THUS BOTH THE PARTIES AGREE THAT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE FOR THE AFORE-STATED REASON. IN THIS V IEW OF THE MATTER, THE APPEAL FILED BY THE DEPARTMENT IS HELD TO BE NO T MAINTAINABLE AND IS ACCORDINGLY DISMISSED. 6. IN THIS CONNECTION, WITH DUE RESPECT, IT IS SUBM ITTED THAT THE CASE RECORDS OF THE ASSESSEE HAS BEEN VERIFIED THOROUGHL Y AND IT IS NOTICED THAT THE TAX EFFECT (EXCLUDING INTEREST PORTION) IN VOLVED DUE TO THE DECISION OF LD. CIT(A) COMES TO RS.3,13,956/-, WHICH EXCEEDS THE LIMIT OF RS.3 LAKHS PRESCRIBED IN BOARDS INSTRUCTION NO. 032011 DATE 09/02/2011, FOR FILING SECOND APPEAL BEFORE THE ITAT. THEREFORE, TH E APPEAL FILED BY THE DEPARTMENT AGAINST THE DECISION OF LD. CIT(A) WAS I N ORDER. 7. THEREFORE, IT APPEARS THAT THERE IS AN APPARENT MISTAKE FROM THE REGARD IN DISMISSING THE DEPARTMENTAL APPEAL ON THE GROUND THAT THE TAX EFFECT INVOLVED WAS JUST BELOW RS. 3 LAKHS. ACCORDI NGLY, IT IS SUBMITTED THAT THE HON. ITAT MAY KINDLY REQUESTED TO RECTIFY THE MISTAKE OR AMEND THE ORDER PASSED IN ITA NO.148/RJT/2011, FOR AY. 20 04-05, AT THE EARLIEST. 3. AT THE TIME OF HEARING, THE LD. DR WAS ONCE AGAI N CALLED TO SHOW AS TO HOW THE TAX EFFECT WAS MORE THAN RS.3 LAKHS. HE CON CEDED THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS AND THAT THE MA FILED BY T HE DEPARTMENT IS MISPLACED. 4. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE ALSO SUBMITTED THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS. 5. WE HAVE HEARD BOTH THE PARTIES. AT THE TIME OF HEARING OF THE APPEAL, THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS. IT WAS ON THE BASIS OF THE SUBMISSION MADE BY THE DEPARTMENTAL REPRESENTATIVE AT THE TIME OF HEARING OF THE APPEAL THAT THE APPEAL FILED BY THE DEPARTMENT WAS DISMISSED. IT CANNOT THEREFORE BE SA ID THAT THE TRIBUNAL HAS COMMITTED AN ERROR IN DISMISSING THE APPEAL ON THE GROUND THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS. EVEN AT THE TIME OF HEARI NG OF THIS MISCELLANEOUS APPLICATION, THE LD. DEPARTMENTAL REPRESENTATIVE ON CE AGAIN CONFIRMED THAT TAX EFFECT WAS LESS THAN RS.3 LAKHS. PLACED IN THIS SIT UATION, WE ARE UNABLE TO ACCEPT 3 M A 28/RJT/2012 THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTME NT. RESULTANTLY, THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT I S DISMISSED. ( * 30.10.2012 ( ORDER PRONOUNCED ON 30.10-2012 SD/- SD/- ( . . / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER /RAJKOT: 30-10-2012 NVA/- ( (( ( -. -. -. -. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1.2 / APPELLANT- THE DY.. COMMISSIONER OF INCOME-TAX, CIR-2, JUNAGADH 2 -42 /RESPONDENT-SHRI JAYESH DINKARRAI DAVDA, AMRELI 3. 8 / CONCERNED CIT 4. 8- / CIT (A 5. . -, , / DR, ITAT, RAJKOT 6. / GUARD FILE / BY ORDER TRUE COPY. SENIOR PRIVATE SECRETARY, ITAT, RAJK OT