The ITO, TDS Ward-2, Baroda V. M/s. Market Movers, Baroda

MA 42/AHD/2015

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 1571 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 30-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT JAIN
• Keywords: Retrospective amendment; Tax effect; TDS
• Section: 201; 268A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE ITO, TDS - 2, BARODA (APPELLANT) VS M/S. MARKET MOVERS PROP: PARESH R. SHAH, 136, WINDSOR PLAZA, R.C. DUTT ROAD, BARODA (RESPONDENT) REVENUE BY : S H RI LAL IT JAIN , SR. D . R. ASSESSEE BY: MS. URVASHI SHODHAN, A.R. DATE OF HEARING : 07 - 12 - 2 018 DATE OF PRONOUNCEMENT : 02 - 01 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTA NT MEMBER : - THE REVENUE HAS FILED THIS MISCELLANEOUS APPLICATION AGAINST THE ORDER OF ITAT VIDE ITA NO. 668/AHD/2013 DATED 12 TH DECEMBER, 2014 . IN THE MA, IT IS STATED AS UNDER: - IN THE PRESENT CASE, THE DEPARTMENT HAD FILED AN APPEAL BEFORE THE HON 'BLE ITAT AND THE TRIBUNAL HAD EARLIER RESTORED THE MATTER TO THE FILE OF THE LD. CIT(A) TO DECIDE THE CASE AFRESH AFTER VERIFYING WHETHER THE NOTICE U/S. 201 OF THE ACT WAS ISSUED WITHIN FOUR YEARS OR NOT AND TO DECIDE THE CASE IN VIEW OF HON'BLE DELHI HI GH COURT'S DECISION IN THE CASE OF CIT VS HUTCHINSON ESSAR TELECOM LTD. HOWEVER, THE ITAT HAS RECALLED ITS EARLIER ORDER ON THE PLEA OF THE ASSESSEE THAT ON SIMILAR ISSUES, THE ITAT HAS EARLIER ALLOWED THE CASE IN FAVOUR OF THE ASSESSEE, IN THE CASE OF ASS ESSEE'S WIFE SMT. BINABEN P. SHAH. NOW THE ITAT HAS DISMISSED THE APPEAL OF REVENUE VIDE ITA NO. 668/AHD/2013 DATED 12/ 12/2014, FOLLOWING THE CASE OF ASSESSEE'S WIFE. HOWEVER, IT IS SEEN FROM THE COPY OF HON'BLE ITAT ORDER IN THE CASE OF SMT. BINABEN P. S HAH THAT THE NOTICE WAS ISSUED ON 10/01/2008 I.E. BEYOND FOUR YEAR FROM THE END OF THE RELEVANT FINANCIAL YEAR (2012 - 13), WHEREAS IN THE INSTANT CASE, AS STATED IN LD. CIT(A)'S ORDER, THE NOTICE WAS SERVED ON M.A. NO. 42/AHD/20 15 (ARISING OUT OF I T A NO . 668 / A HD/20 13) A SSESSMENT YEAR 200 3 - 04 M.A. NO. 42/AHD/2015 (IN I.T.A NO. 668 /AHD/20 13) A.Y. 2003 - 04 PAGE NO IT O VS. M/S. MARKET MOVERS 2 15/02/2007, WHICH IS WITHIN FOUR YEARS. THEREFO RE, THE HON'BLE TRIBUNAL IS NOT CORRECT IN RELYING AND FOLLOWING THE SAID ORDER. THEREFORE, MISCELLANEOUS APPLICATION (M.A.) AGAINST THE ORDER OF THE HON'BLE ITAT 'D' BENCH, AHMEDABAD, (ITA NO. 668/AHD/2013 DATED 12/12/2014) IN THE CASE OF M/S. MARKET MOV ERS, PROP. PARESH R. SHAH FOR A.Y. 2003 - 04, MAY KINDLY BE ADMITTED. 2. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE LD. DEPARTMENTAL REPRESENTATIVE REITERATED THE SUBMISSION AS MENTIONED IN THE MA AS STATED ABOVE IN THIS ORDER. 3. ON THE OTHER HAND , LD. COUNSEL HAS SUPPORTED THE ORDER OF ITAT. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. IN THIS CASE, DEPARTMENTAL REPRESENTATIVE VIDE LETTER DATED 5 TH OCTOBER, 2018 HAS SUBMITTED THAT THE ITO TDS RAISED TOTAL DEM AND OF RS . 515480/ - HAVING TAX EFFECT BELOW RS. 20 LACS. ON 11.7.2018 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 3 OF 2018 NO.F.NO.279/MISC.142/2007 - ITJ(PT) PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.20 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THEREBY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALS O. IN THE PRESENT CASE, TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH APPEAL IS FILED, IS LESS THAN RS.20 LAKHS. FUR THER, THE CASE OF THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS, KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE PRESENT APPEAL OF THE REVE NUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. HOWEVER, IT IS OBSERVED THAT IN CASE ON RE - VERIFICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUE S CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE DEPARTMENT WILL BE AT M.A. NO. 42/AHD/2015 (IN I.T.A NO. 668 /AHD/20 13) A.Y. 2003 - 04 PAGE NO IT O VS. M/S. MARKET MOVERS 3 LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. 5. IN THE RESULT, THE MISC. APP LICATION OF THE REVENUE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 02 - 01 - 201 9 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 02 /01/2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,