The ACIT,Sabarkantha Circle, Himatnagar V. M/s. Sonata Ceramics Pvt.Ltd., Himatnagar

MA 37/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5365 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Keywords: Tax effect
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV , JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER M.A NO.37 /AHD/2019 IN ./ ITA NO. 733 / AHD/ 2016 / ASSTT. YEAR : 2008 - 2009 A.C.I.T , S.K. CIRCLE , HIMATNAGAR . VS M/S SONATA CERAMICA PVT. LTD. AT & PO GADHODA , TALOD ROAD , HIMATNAGAR , SABARKANTHA - 383001. PAN AAGCS4523D (APPLICANT) (RESPONENT) REVENUE BY : SHRI S.K. DEV , SR.D .R. ASSESSEE BY : SHRI TUSHAR P. HEMANI , A.R / DATE OF HEARING : 02 / 08 /201 9 / DATE OF PRONOUNCEMENT: 20 / 08 /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 ORDER DATED 30/07 /2018 PASSED BY THE CO - ORDINATE BENCH, IN ITA NO. 733 /AHD/2016 FOR ASST. YEAR 20 08 - 2009 . 2. IN THE MISCELLANEOUS APPLICATION THE REVENUE HAS SUBMITTED AS FOLLOWS: M.A NO.37 /AHD/2019 IN ITA NO.733 /AHD/2016 A.Y.20 08 - 09 . 2 IN THIS CASE, THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT WAS PASSED ON 29/09/2014 AFTER MAKING AN ADDITION OF RS.79,88,328/ - ON ACCOUNT OF SUPPRESSION OF SALES PRICE BY TAKING GP RATE @40% ON UNACCOUNTED CASH RECEIVED OF RS.1,99,70,8 20/ - ON THE BASIS OF INFORMATION RECEIVED FROM DGCEI, AHMEDABAD. 2. AGGRIEVED WITH THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A), AND THE LD.CIT(A) VIDE ITS ORDER DATED 22/01/2016 HAS PARTLY ALLOWED THE APPEAL O F THE ASSESSEE BY TAKING 10.68% ON THE ABOVE AMOUNT. WHILE DECIDING THE APPEAL RELIED UPON THE DECISION OF CIT(A) - VIII, AHMEDABAD PASSED IN APPEAL NO.CIT(A) - VIII/ACIT/S.K.CIR./424 AND 423/11 - 12 DATED 30/07/2012 IN THE ASSESSEE S CASE FOR A.Y. 2005 - 06 & 200 6 - 07. 3. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), REVENUE HAS PREFERRED APPEAL BEFORE HON'BLE ITAT AGAINST THE ORDER OF THE LD, CIT(A) AND THE HON'BLE ITAT HAS DISMISSED THE APPEAL OF THE DEPARTMENT RELYING UPON THE CBDT'S CIRCULAR NO.03/2018 HOLDING T HAT THE TAX EFFECT WAS BELOW THE LIMITS FOR FILING APPEAL BEFORE ITAT. 4. IT IS SEEN THAT IN THIS CASE, THE ASSESSMENT U/S 147 WAS REOPENED AND FINALIZED ON THE BASIS OF INFORMATION RECEIVED FROM DGCEI, AHMEDABAD, THEREFORE, THE CASE FALLS IN THE EXCEPTIO N LAID DOWN IN PARA 10 OF CIRCULAR NO.03/2018 DATED 20/08/2018. 5. THE HON'BLE ITAT IN ITS ORDER UNDER CONSIDERATION HAS ALSO CLARIFIED THAT APPELLANT SHALL BE AT LIBERTY TO POINT OUT THE CASES WHICH ARE WRONGLY INCLUDED IN THE APPEALS SO SUMMARILY DISMIS SED, EITHER WRONG COMPUTATION OF TAX EFFECT OR OWING TO SUCH CASES BEING COVERED BY PERMISSIBLE EXCEPTIONS - OR FOR ANY OTHER REASONS. HENCE, THE APPEAL DECIDED BY HON'BLE ITAT IS REQUIRED TO BE RESTORED AND IT IS REQUESTED THAT THE HONB'LE ITAT TO CONSIDER THE RELEVANT FACTS AND HENCE THIS MISCELLANEOUS APPLICATION IS BEING FILED. 6. THE APPROVAL LETTER FROM THE PR.CIT - 2, AHMEDABAD IS ENCLOSED HEREWITH ALONGWITH A COPY OF HON'BLE ITAT ORDER. PRAYER OF THE DEPARTMENT : IT IS THEREFORE, HUMBLY PRAYED THAT: THE HON'BLE ITAT MAY RECALL THE ORDER PASSED ON 27/07/2018 AND DECIDE THE CASE ON THE BASIS OF FACTS MENTIONED HERE - IN - ABOVE AND AMEND THE ORDER. 3. AT THE OUTSET, THE LD. D R FOR THE REVENUE BEFORE US SUBMITTED THAT THE IMPUGNED APPEAL HAS BEEN DISMISSED BY THE HON BLE ITAT BY HOLDING THAT TAX EFFECT IS LESS THAN RS.20 LACS ONLY . H OWEVER, IT WAS SUBSEQUENTLY FOUND THAT T HE IMPUGNED CASE F ALLS IN THE EXCEPTION PROVIDED IN PARA 10 OF CIR CULAR M.A NO.37 /AHD/2019 IN ITA NO.733 /AHD/2016 A.Y.20 08 - 09 . 3 NO.03/2018 DATED 20/08/2018. THEREFORE, IT IS PRAYED TO RECALL THE MATTER AND FIX THE CASE FOR HEARING AS PER THE PROVISION OF LAW. 4. ON THE OTHER HAND LD. AR FAIRLY CONCEDED THAT THE IMPUGNED APPEAL FALLS IN THE EXCEPTION PROVIDED IN PARA 10 OF CIRCULAR NO.03/2018 DATED 20/08/2018. 5 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORDS. ADMITTEDLY, THE TAX EFFECT IN THE INSTANT CASE DOES NOT EXCEED RS.20 LACS BUT IT FALLS IN THE EXCEPTION PROVIDED IN PARA 10 OF CIR CULAR NO.03/2018 DATED 20/08/2018. THE RELEVANT CLAUSE STANDS 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 LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: ( A ) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX ( E ) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). 5.1 IN THE CASE ON HAND THE ADDITION WAS MADE ON THE BASIS OF THE INFORMATION & DETAILS RECEIVED FROM DIRECTORATE GENERAL OF CENTRAL EXCISE INTELLIGENCE, AHMEDABAD ZONAL UNIT. IN VIEW THE ABOVE, WE HOLD THAT THE CASE OF THE ASSESSEE FALLS IN THE EXCEPTION PROVIDED IN THE CIRCULAR ISSUED BY THE CBDT BEARING NO.3/2018 DATED 11/07/2018 AND THEREFORE IT DOES NOT APPLY IN THE PRESENT CASE. ACCORDINGLY, WE NOTE THAT THERE IS A MISTAKE IN THE ORDE R OF THE ITAT WHICH IS APPARENT FROM THE RECORD . A CCORDINGLY , WE CALL THE ORDER OF THE ITAT DT. 30/07/2018 AND DIRECT THE REGISTRY TO FIX THE FRESH HEARING ON 30 /10 /2019 . AS M.A NO.37 /AHD/2019 IN ITA NO.733 /AHD/2016 A.Y.20 08 - 09 . 4 THE DATE OF HEARING WAS PRONOUNCED IN THE OPEN COURT, THEREFORE THE REQUIREMENT FOR ISSUING THE SEPARATE NOTICE IS DISPENSED WITH. 6 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 20 / 08 / 201 9 AT AHMEDABAD. - SD - ( RAJPAL YADAV ) JUDICIAL MEMBER - SD - ( WASEEM AHMED ) ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 20 / 08 / 201 9 MANISH