The Income tax Officer, Ward-5(2)(3), Ahmedabad V. Nirav Discretionery Family Trust, Ahmedabad

MA 365/AHD/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7344 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 02-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Tax effect
• Section: 244A; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER M.A NO .365 /AHD/2019 IN ./ IT(SS)A . NO .85 / AHD / 2018 / ASSTT. YEAR BLOCK PERIOD (01/04/1995 TO 27/09/2001) I.T.O , WARD - 5(2)(3) , AHMEDABAD . VS NIRAV DISCRETIONARY FAMILY TRUST , NIRMA HOUSE , ASHRAM ROAD, AHMEDABAD . PAN : AAATN1115F (APPLICANT) ( RESPON D ENT ) REVENUE BY : SH R I L.P. JAIN , SR. D.R ASSESSEE BY : SHRI HIMANSHU SHAH , A.R / DATE OF HEARING : 17 / 01/2020 / DATE OF PRONOUNCEMENT: 28 / 01/2020 / O R D E R PER WASEEM AHMED , ACCOUNTANT MEMBER : THE REVENUE BY WAY OF THIS MISCELLANEOUS APPLICATIONS, IS SEEKING TO RECALL THE ORDER PASSED BY THE ITAT DATED 04/06/2019 IN ITA NO. 85/A HD /2018 ON THE GROUND THAT THERE IS A MISTAKE APPARENT FROM THE RECORD. 2. THE ASSESSEE MADE A RECTIFICATION APPLICATION UNDER SECTION 154 OF THE ACT BEFORE T HE AO FOR THE GRANT OF ADDITIONAL COMPENSATION OF INTEREST U/S 244A OF THE A CT. BUT THE SAME WAS REJECTED BY THE AO. HOWEVER, ON APPEAL, THE ''LD.CIT (A)'' WAS PLEASED TO GRANT THE ADDITION AL COMPENSATION ON INTEREST U/S 244A OF THE ACT TO THE A SSESSEE. M.A NO .365 /AHD/2019 IN IT(SS)A NO .85/AHD/2018 BLOCK PERIOD 01/04/ 1995 TO 27 /09/2001 2 3. AGAINST THE ORDER OF THE ''LD.CIT (A)'' THE R EVENUE PREFERRED AN APPEAL TO THE ITAT WHICH WAS REJECTED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF CBDT CIRCULAR NO. 03 OF 2018 DATED 11/07/2018 VIDE ORDER DATED 04/06/2019 IN IT (SS) A NO. 85/A HD /2018 . 4. THE LD. DR, BEFORE US SUBMITTED THAT THE VALIDITY OF ADDITIONAL COMPENSATION OF INTEREST UNDER SECTION 244A HAS BEEN CHALLENGE BEFORE THE COURT. THEREFORE THE PROVISION OF CBDT CIRCULAR BEARING NO. 3 DATED 11/07/2018 DOES NOT APPL Y IN VIEW OF CLAUSE 10( A ) OF THE CIRCULAR IN THE PRESENT CASE. IT IS BECAUSE THE ISSUE RAISED BY THE R EVENUE FALLS UNDER THE EX C E PTION CLAUSE PROVIDED IN THE CIRCULAR . A CCORDINGLY THE LD. DR PLEADED THAT THE IMPUGNED APPEAL OF THE R EVENUE CANNOT BE REJECTED ON ACCOUNT OF LOW TAX EFFECT BY THE TRIBUNAL. 5. ON THE OTHER HAND LD. A R VEHEMENTLY SUPPORTED THE ORDER OF THE HON BLE ITAT. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. AT THE OUTSET WE NO TE THAT THE PLEA RAISED BY THE R EVENUE IN ITS MISCELLANEOUS APPLICATION WAS ALSO RAISED BY THE LD. DR AT THE TIME OF HEARING THE MAIN APPEAL BEARING NO. IT(SS)A NO.85/AHD/2018 WHICH WAS REJECTED BY THE ITAT. THE RELEVANT EXTRACT OF THE ITAT ORDER IS REPRODUCED AS UND ER: 3. WE ARE UNABLE TO SEE LEGALLY SUSTAINABLE MERITS IN THE PLEA OF THE LEARNED DEPARTMENT REPRESENTATIVE. IT IS ONLY WHEN VALIDITY OF A CBST INSTRUCTION IS IN CHALLENGE, SUCH AS IN A WRIT PETITION, THIS EXCEPTION CLAUSE WILL COME INTO PLAY. HAVING PERUS ED THE MATERIAL ON RECORD, WE DO NOT FIND ANY OF THE EXCEPTION CLAUSES BEING APPLICABLE IN THE PRESENT CONTEXT. WE REJECT THE PLEA. FROM THE ABOVE IT IS CLEAR THAT THE ARGUMENT OF THE REVENUE WAS DULY REJECTED AFTER CON SIDERATION BY THE ITAT. THEREFORE THE RE IS NO MISTAKE APPARENT FROM THE RECORD AS ALLEGED BY THE REVENUE. M.A NO .365 /AHD/2019 IN IT(SS)A NO .85/AHD/2018 BLOCK PERIOD 01/04/ 1995 TO 27 /09/2001 3 6.1 THE ITAT HAS LIMITED POWER TO RECTIFY THE MISTAKE WHICH IS APPARENT FROM RECORD OTHERWISE IF WE RECALL THE ORDER IN THE PRESENT CASE THEN IT WILL TANTAMOUNT TO REVIEW OF ITS OWN O RDER WHICH IS NOT PERMISSIBLE UNDER THE LAW. 6.2 BESIDE THE ABOVE WE ALSO NOTE THAT THERE IS NO JUSTIFICATION IN THE PLEA RAISED BY THE REVENUE . AS SUCH, T HE ''LD.CIT (A)'' HAS PASSED THE ORDER GRANTING ADDITIONAL COMPENSATION OF INTEREST UNDER SECTION 24 4A OF THE ACT AFTER CONSIDERING VARIOUS JUDICIAL PRECEDENT S . ACCORDINGLY SUCH ORDER OF THE ''LD.CIT (A)'' CANNOT BE CHALLENGED B Y THE REVENUE ON THE GROUND OF CONSTITUTIONAL V ALIDITY OR RULE . T HUS WE DO NOT FIND ANY MERIT IN THE M.A . FILED BY THE REVENUE. ACCORDINGLY WE DISMISS THE SAME. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 28 / 01 / 2020 AT AHMEDABAD. - SD - ( RAJPAL YADAV ) VICE PRESIDENT - SD - ( WASEEM AHMED ) ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 28 / 01 / 2020 MANISH