The DCIT, Circle-1(1)(2),, Ahmedabad V. CEL Packaging Pvt. Ltd., Ahmedabad

MA 34/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6430 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 29-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: M K PATEL
• Keywords: Tax effect; Commercial expediency; Reassessment proceedings
• Section: 201

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS MADHUMITA ROY , JUDICIAL MEMBER M.A NO. 34/AHD/2019 WITH ./ ITA NO. 288 / AHD/ 2017 / ASSTT. YEAR: 2013 - 2014 D.C.I.T. , CIRCLE - (1)(1)(2 ), AHMEDABAD. VS M/S CEL PACKAGING PVT. LTD. , CORE HOUSE , OFF C.G. ROAD, NR. PARIMAL GARDEN , ELLISBRIDGE , AHMEDABAD . PAN: AADCC1485H (APPLICANT) (RESPONENT) REVENUE BY : SHRI L.P. JAIN , SR.D .R. ASSESSEE BY : SHRI M.K. PATEL , A.R / DATE OF HEARING : 06 / 09 /201 9 / DATE OF PRONOUNCEMENT: 16 / 10 /201 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER : BY THIS MISCELLANEOUS APP LICATION, THE REVENUE HAS REQUESTED FOR RECALLING OF THE CONSOLIDATED ORDER DATED 27 /07 /2018 BY THE ITAT PASSED IN GROUP OF CASES INCLUDING THE ASSESSEE AS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SAID ORDER. 2. THE LD. DR BEFORE US SUBMITTED THAT THE APPEAL FILED BY THE REVENUE WAS DISMISSED BY THE HON BLE TRIBUNAL BY HOLDING THAT THE TAX EFFECT IS LESS M.A NO. 34/AHD/2019 IN ITA NO.288/AHD/2017 A.Y.20 13 - 14 . 2 THAN RS. 20 LAKHS AS PRESCRIBED IN THE CIRCULAR ISSUED BY THE CBDT B EARING NO.03/2018 DATED 11/07/2018. HOWEVER, THE TAX EFFECT IN THE IMPUGN ED CASE INVOLVES A SUM OF RS. 21,67,202 / - WHICH IS EXCEEDING THE MONETARY LIMIT OF RS. 20 LAKHS. ACCORDINGLY, THE LD. DR SUBMITTED THAT THERE IS A MISTAKE IN THE ORDER OF ITAT APPARENT FROM RECORD AND ACCORDINGLY PRAYED TO RECAL L THE ORDER PASSED BY IT. 3. ON THE OTHER HAND, THE LD. AR FILED THE CALCULATION OF TAX INVOLVED AND SUBMITTED THAT TAX EFFECT IS OF RS. 19,70,184.00 WHICH IS LESS THAN THE MONETARY LIMIT AS SPECIFIED BY THE CBDT IN ITS CIRCULAR BEARING NO.03/2018 DATED 11/07/2018 . 4. HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. PRIMA - FACIE, THE TAX EFFECT INVOLVED IN THE APPEAL IS EXCEEDING THE LIMIT SPECIFIED BY THE CBDT IN ITS CIRCULAR. THUS, THE SAME CANNOT BE DISMI SSED DUE TO LAW TAX EFFECT. ACCORDINGLY, WE HOLD THAT A MISTAKE HAS BEEN CREPT IN THE ORDER PASSED BY THE TRIBUNAL AND BEING APPARENT FROM RECORD. HENCE, WE RECALL THE O RDER PASSED BY THE ITAT DATED 27 /07/2018. 5. THE GROUND RAISED BY THE REVENUE IN ITS MISCELLANEOUS APPLICATION IS ALLOWED. COMING TO THE REVENUE S APPEAL IN ITA NO.288/AHD/2017 FOR AY 2013 - 14 . 6. THE LD.AR AT THE TIME OF HEARING OF MISCELLANEOUS APPLICATION FILED BY THE REVENUE PRAYED TO THE BENCH TO HEAR THE CASE ON MERIT AND DE CIDE THE ISSUE AS PER THE PROVISIONS OF LAW. M.A NO. 34/AHD/2019 IN ITA NO.288/AHD/2017 A.Y.20 13 - 14 . 3 7. THE LD. DR DID NOT OPPOSE THE HEARING OF THE CASE ON MERIT. 8. IN V IEW OF NO OBJECTION BY THE LD. D R, WE PROCEED TO HEAR THE CASE ON MERIT. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THE REASSESSMENT PROCEEDINGS AS VOID. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS BY NOT APPRECIATING THAT THE ASSESSMENT WAS REOPENED WITHIN FOUR YEARS FROM THE RELEVANT ASSESSMENT YEAR AND THE ISS UE DECIDED IN REASSESSMENT PROCEEDINGS WAS NOT DEALT WITH DURING ORIGINAL ASSESSMENT PROCEEDINGS. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW THE ASSESSEE SHORT TERM CAPITAL LOSS OF RS.30,10,000/ - INSTEAD OF SHORT TERM CAPITAL GAIN OF RS.44,98,600/ - CALCULATED BY THE AO. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS BY NOT APPRECIATING THAT THE ASSESSEE HAD FAILED TO EXPLAIN COMMERCIAL EXPEDIENCY TO SELL THE SHARES THROUGH OFF MARKED TRANSACTIONS BELOW THE MARKET PRICE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 6. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A) MAY BE SET - ASIDE AND THAT OF THE ASSESSING OFFI CER BE RESTORED. 9. AT THE OUTSET, IT WAS NOTICED THAT THE LIMIT FOR FILING THE APPEAL BY THE REVENUE WAS ENHANCED BY THE CBDT IN ITS CIRCULAR BEARING NO.17 OF 2019 DATED 08/08/2019 FROM RS.20 LAKHS TO RS.50 LAKHS WHICH IS APPLICABLE ON THE PENDING APPEAL S AS HELD BY THIS TRIBUNAL IN THE CASE OF ITO V/S. DINESH MADHAVLAL PATEL IN ITA NO.1398/AHD/2004 FOR AY 1998 - 99 VIDE ORDER DATED 14/08/2019. THE RELEVANT EXTRACT OF THE CIRCULAR IS REPRODUCED AS UNDER: M.A NO. 34/AHD/2019 IN ITA NO.288/AHD/2017 A.Y.20 13 - 14 . 4 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATION. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME - TAX CASES BE ENHANCED FURTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY. THE TABLE FOR MONETARY LIMITS SPECIFIED IN PARA 3 O F THE CIRCULAR SHALL READ AS FOLLOWS: S.NO. APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (RS.) 1 BEFORE APPELLATE TRIBUNAL 50,00,000 2 BEFORE HIGH COURT 1,00,00,000 3 BEFORE SUPREME COURT 2,00,00,000 10. FROM THE ABOVE CIRCULAR, THERE IS N O AMBIGUITY THAT THE APPEAL FILED BY THE REVENUE INVOLVING TAX EFFECT OF RS. 50 LAKHS IS NOT MAINTAINABLE. IN THE CASE O N HAND, THE TAX EFFECT OF RS. 21,67,202 / - ONLY. THEREFORE, THE IMPUGNED APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 11. BEFORE PARTING, WE ARE INCLINED TO GRANT THE LIBERTY TO REVENUE TO MOVE AN APPLICATION FOR RECALLING OF THE ORDER IF THE CASE OF THE REVENUE FALLS IN THE EXCEPTION AS PROVIDED IN THE CBDT CIRCULAR BEARING NO.3 OF 2018 R.W. THE CIRCULAR NO. 17 OF 2019 . HENCE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 12. IN THE COMBINED RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 16 / 10 / 201 9 AT AHMEDABAD. - SD - ( MS MADHUMITA ROY ) JUDICIAL MEMBER - SD - ( WASEEM AHMED ) ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 16 / 10 / 201 9 MANISH