The ITO, Ward-1(2)(5), Vadodara V. Smt. Ranjanben Dhirajlal Patel, Vadodara

MA 39/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1126 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-09-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 27-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANAND KUMAR JT
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Audit objection; Tax effect
• Section: 148

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 39/AHD/2017-AY 2008-0 9 (IN I.T.A. NO. 731/AHD/2015-AY 2008-09 ) INCOME TAX OFFICER WARD 1(2)(5), ROOM NO. 106, 1 ST FLOOR, AAYKAR BHAVAN, RACE COURSE CIRCLE, VADODARA 390007 / VS. SMT. RANJANBEN DHIRAJLAL PATEL 31, AMRAKUNJ SOCIETY, RACE COURSE CIRCLE, VADODARA 390007 / / PAN/GIR NO. : ABJPP8550G ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ANAND KUMAR, JT.CIT. / RESPONDENT BY : SHRI MEHUL K. PATEL, A.R. / DATE OF HEARING 07/09/2018 !'# / DATE OF PRONOUNCEMENT 17/09/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN FI LED AT THE INSTANCE OF REVENUE POINTING OUT THAT THE ORDER OF ITAT IN ITA NO.731/AHD/2015, DATED 16.12.2015 CONCERNING AY 201 1-12 SUFFERS FROM VICE OF APPARENT ERROR. M.A. NO. 39/AHD/17 [ ITO VS. RANJANBEN D. PATEL] A.Y. 2008-09 - 2 - 2. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED DR FOR THE REVENUE REFERRED TO ITS MISCELLANEOUS APPLICATION M OVED IN THIS REGARD AND SUBMITTED THAT THE ITAT HAD DISMISSED TH E APPEAL OF THE REVENUE ON THE GROUND THAT APPEAL IS NOT MAINTAINAB LE IN VIEW OF THE CBDT CIRCULAR NO. 21/2015 DATED 10.12.2015 DUE TO LOW TAX EFFECT. THE LEARNED DR SUBMITTED THAT ALTHOUGH THE TAX EFFECT INVOLVES RS.1,14,571/- ONLY WHICH IS LESS THAN MONE TARY LIMIT FOR MAINTAINABILITY OF APPEAL BEFORE THE ITAT BUT HOWEV ER, THE ISSUE RAISED IN THE REVENUES APPEAL BEFORE THE ITAT IS C OVERED BY THE EXCEPTION PROVIDED FOR APPLICABILITY OF MONETARY LI MIT IN VIEW OF THE ACCEPTANCE OF REVENUE AUDIT OBJECTION RAISED. ELAB ORATING FURTHER, THE LEARNED DR FOR THE REVENUE SUBMITTED THAT THE A SSESSEE DID NOT FILE THE RETURN OF INCOME. A NOTICE UNDER S.148 OF THE ACT DATED 05.08.2011 WAS SERVED UPON THE ASSESSEE TO FILE THE RETURN OF THE INCOME FOR THE IMPUGNED ASSESSMENT YEAR 2008-09. C ONSEQUENTLY, THE ASSESSEE FILED HER INCOME TAX RETURN ON 28.09.2 011. THE ORDER UNDER S.143(3) OF THE ACT WAS PASSED ON 30.03.2013 DETERMINING TOTAL INCOME AT RS.30,45,397/-. THUS, THE ASSESSEE FILED RETURN OF INCOME ON 28.09.2011 AS AGAINST THE DUE DATE OF FIL ING OF RETURN ON 31.07.2008 AS PER SECTION 139(1) OF THE ACT. HENCE , THE ASSESSEE WAS LIABLE TO PAY SIMPLE INTEREST UNDER S.234A OF T HE ACT IMMEDIATELY FOR BELATED FILING OF RETURN OF INCOME AFTER DUE DATE PRESCRIBED UNDER S.139(1) OF THE ACT AND ENDING ON THE DATE OF FURNISHING RETURN OF INCOME. HOWEVER, THE AO COMMI TTED ERROR AND WRONGLY COMPUTED THE INTEREST UNDER S.234A OF THE A CT FOR LESSER PERIOD INSTEAD OF FULL PERIOD OF DEFAULT. THE RECT IFICATION WAS CARRIED OUT U/S.154 OF THE ACT IN THIS REGARD TO FI X THE LIABILITY UNDER S.234A OF THE ACT WITH REFERENCE TO THE DUE DATE AS PRESCRIBED UNDER S.139(1) OF THE ACT. THE ASSESSEE PREFERRED APPEAL AGAINST THE AFORESAID ORDER PASSED UNDER S.154 OF THE ACT WHICH WAS ALLOWED BY M.A. NO. 39/AHD/17 [ ITO VS. RANJANBEN D. PATEL] A.Y. 2008-09 - 3 - THE CIT(A) AND CONSEQUENTLY, THE REVENUE WAS DENIED OF INTEREST FOR THE PERIOD FROM 01.08.2008 TO 28.09.2011. AGAINST T HE AFORESAID ACTION OF THE CIT(A), THE REVENUE PREFERRED THE APP EAL BEFORE THE TRIBUNAL. HOWEVER, THE REMEDY WAS DENIED TO THE RE VENUE BY THE ITAT IN VIEW OF THE CBDT CIRCULAR. PAUSING HERE, T HE LEARNED DR FOR THE REVENUE SUBMITTED THAT THE ISSUE OF CHARGEA BILITY OF INTEREST UNDER S.234A OF THE ACT WITH REFERENCE TO DUE DATE UNDER S.139(1) OF THE ACT OR FROM THE SUBSEQUENT DATE OF FILING OF RE TURN UNDER S.139(4) OF THE ACT/SECTION 148 OF THE ACT IS SUBST ANTIAL IN NATURE FOR WHICH AUDIT OBJECTION RAISED WAS ENTERTAINED BY THE COMPETENT OFFICER OF THE DEPARTMENT. CONSEQUENTLY, THE PRESEN T MISCELLANEOUS APPLICATION HAS BEEN MOVED FOR RESTORATION OF APPEA L FOR ADJUDICATION ON MERITS. 3. THE LEARNED AR FOR THE ASSESSEE DID NOT OPPOSE T HE PETITION OF THE REVENUE WITH FORCE BUT, HOWEVER, SUBMITTED THAT THE AS PER THE PURPORT OF CBDT CIRCULAR, FILING OF APPEAL SHOULD B E DISCOURAGED. 4. WE HAVE CAREFULLY CONSIDERED THE APPLICATION MOV ED AND THE CONTENTIONS RAISED. PARA 8 OF THE CBDT CIRCULAR NO .21/2015 DATED 10.12.2015 PROVIDES FOR CERTAIN EXCEPTIONS TOWARDS APPLICABILITY OF MONETARY LIMITS TO FLUSH OUT THE APPEALS OF LESSER VALUE. ONE OF THE GROUNDS FOR NON APPLICABILITY OF CIRCULAR IS WHERE THE REVENUE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT. THE REFORE, THE CASE OF THE REVENUE APPEARS TO BE COVERED BY THE EXCEPTI ON PROVIDED IN PARA 8(C) OF THE CBDT CIRCULAR. IN THIS VIEW OF TH E MATTER, THE ORDER OF THE ITAT DISMISSING THE APPEAL OF THE REVE NUE SUMMARILY BY TAKING SHELTER OF THE CBDT CIRCULAR REQUIRES TO BE SET ASIDE AND RECALLED FOR ADJUDICATION OF ISSUES RAISED BY THE R EVENUE ON MERITS. HENCE, WE RECALL THE ORDER OF THE ITAT IN ITA NO.73 1/AHD/2015 M.A. NO. 39/AHD/17 [ ITO VS. RANJANBEN D. PATEL] A.Y. 2008-09 - 4 - DATED 16.12.2015 CONCERNING AY 2008-09 AND DIRECT T HE REGISTRY TO FIX THE APPEAL FOR A FRESH HEARING ON 12.11.2018. B OTH THE PARTIES WERE SUITABLY INFORMED IN THE COURT IN THIS REGARD AND ACCORDINGLY NOTICE OF HEARING IS DISPENSED WITH THE CONSENT OF BOTH THE PARTIES. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS ALLOWED. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 17/09/2018 TRUE COPY S. K. SINHA ! / COPY OF ORDER FORWARDED TO:- & / REVENUE 2 / ASSESSEE ( ) *+ , / CONCERNED CIT 4 ,- / CIT (A) / 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7 289 : / GUARD FILE. BY ORDER / 4 / 5 *+#4 56) THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 17 /09/2018