The ITO, Ward-1(2), JUNAGADH V. Shri Dilipbhai H. Javia, JUNAGADH

MA 46/RJT/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1215 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-10-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 20-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR JAYANT B JHAVERI
• Assessee Lawyers: J C RANPURAC A
• Keywords: Rectification of order; Audit objection; Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. .. .. BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTAVA AM MA NO. 46/RJT/2012 (ARISING OUT OF ITA NO.68/RJT/2011) / ASSESSMENT YEAR 2001-02 THE ITO, WARD-1(2), JUNAGADH ( / APPELLANT) SHRI DILIPBHAI H JAVIA, PROP OF M/S SMITH ENTERPRISE JUNAGADH PAN: ABLPJ 5380 Q / RESPONDENT ! '# / REVENUE BY DR JAYANT B JHAVERI, DR $% ! '# / ASSESSEE BY SHRI J C RANPURA, CA ' & ' %( / DATE OF HEARING 04.10.2013 ) %( / DATE OF PRONOUNCEMENT 15.10.2013 / ORDER .. , / T. K. SHARMA, J. M. : THIS MISCELLANEOUS APPLICATION FILED BY THE REVENUE READS AS UNDER:- 2. THE DEPARTMENT HAS FILED A SECOND APPEAL BEFORE THE HONBLE ITAT AGAINST THE DECISION OF LD. CIT(A)-XXI, AHMEDABAD D TD. 31.12.2010 IN APPEAL NO.C.I.T.(A)-XXI/484/CIR.5 JNG/10-11 FOR THE A.Y. 2 001-02, IN THE CASE OF ABOVE NAMED ASSESSEE. THE SAID APPEAL WAS DECIDED B Y THE HONBLE ITAT DISMISSING THE APPEAL OF REVENUE. WHILE DISMISSING THE APPEAL, THE HONBLE ITAT HELD THAT :- THE CENTRAL BOARD OF DIRECT TAXES BY ITS CIRCULAR DATED MARCH 27, 2000, HAS TAKEN A POLICY DECISION NOT TO FILE REFER ENCES IF THE TAX EFFECT IS LESS THAN 2 LAKHS. THIS CIRCULAR IS APPLICABLE E VEN TO THE OLD REFERENCES WHICH ARE STILL UNDECIDED. THE DEPARTMEN T CAN NOT CONTEND THAT CIRCULAR IS BINDING ONLY WITH RESPECT TO NEW C ASES AND NOT WITH RESPECT TO THE OLD REFERRED CASES EVEN IF THE TAX I S LESS THAN RS.2 LAKHS. THE SAME POLICY FOR OLD MATTERS NEEDS TO BE ADOPTED BY THE DEPARTMENT. IN LIGHT OF THE JUDGMENT OF THE BOMBAY HIGH COURT WE FIND THAT THE INSTRUCTION DTD 09-02-2011 IS APPLICABLE T O APPEALS FILED BEFORE ISSUANCE OF INSTRUCTION DATED 09-02-2011. IN VIEW OF THE MATTE, AND IN THE LIGHT OF THE JUDGM ENT OF THE BOMBAY HIGH COURT SUPRA, WE DISMISS THE APPEAL FILED BY TH E REVENUE AS NOT MAINTAINABLE SINCE THE TAX EFFECTIVE INVOLVED IN TH E APPEAL IS BELOW RS.3 LAKHS. 3. IN THIS CONNECTION, IT IS SUBMITTED THAT IN THIS CASE, FOR THE RELEVANT ASSESSMENT YEAR A REVENUE AUDIT OBJECTION WAS INVOL VED AND THE SAID AUDIT OBJECTION WAS ACCEPTED BY THE DEPARTMENT. THEREFORE , THE SECOND APPEAL WAS FILED ON MERITS OF THE CASE. IT IS FURTHER SUBMITTE D THAT AS PER INSTRUCTION NO.03/2011 DATED 09.2.2011, ADVERSE JUDGMENTS RELAT ING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDIN G THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED OR THERE IS NO TAX EFFECT. MA 46-RJT-2012- SHRI DILIPBHAI H JAVIA 2 4. IN VIEW OF THE ABOVE FACTS, THE DEPARTMENT HAS F ILED THE SECOND APPEAL BEFORE THE HONBLE ITAT BUT THE ITAT HAS BEEN DISMI SSED ON ACCOUNT OF LOW TAX EFFECT. THEREFORE, IN MY OPINION, THERE IS AN A PPARENT MISTAKE IN THE APPELLATE ORDER REFERRED TO ABOVE. ACCORDINGLY, THE HONBLE ITAT MAY BE REQUESTED TO KINDLY CONSIDER THE MISCELLANEOUS APPL ICATION AND PASS NECESSARY RECTIFICATION ORDER FOR DECIDING THE CASE ON MERIT. COPIES OF ALL DOCUMENTS ARE ENCLOSED HEREWITH. 2. AT THE TIME OF HEARING OF AFORESAID MISCELLANEOU S APPLICATION, ON BEHALF OF REVENUE DR. JAYANT B JHAVERI, DR APPEARED AND POINT ED OUT THAT IN THIS CASE A REVENUE AUDIT OBJECTION WAS INVOLVED AND THE SAID A UDIT OBJECTION WAS ACCEPTED BY THE DEPARTMENT; THEREFORE TRIBUNAL SHOULD HAVE DECI DED THE APPEAL OF THE REVENUE ON MERIT INSTEAD OF DISMISSING THE SAME ON ACCOUNT OF LOW TAX EFFECT. AS AGAINST THIS, SHRI J. C. RANPURA, CA, APPEARED ON BEHALF OF THE A SSESSEE, POINTED OUT THAT AT THE TIME OF HEARING OF APPEAL, NO SUCH PLEA WAS TAKEN. HE FURTHER POINTED OUT THAT IN THE GROUNDS OF APPEAL ALSO THERE IS NO WHISPER ABOUT TH E REVENUE AUDIT OBJECTION/ACCEPTANCE OF SAID AUDIT OBJECTION BY THE DEPARTMENT; THEREFORE THERE IS NO MISTAKE HAS BEEN COMMITTED BY THE TRIBUNAL IN DISMI SSING THE APPEAL FOLLOWING THE INSTRUCTION NO.3/2011 DTD. 09.02.2011. 3. RIVAL SUBMISSIONS WERE CONSIDERED. ADMITTEDLY, A T THE TIME OF HEARING OF APPEAL, THE LD DEPARTMENTAL REPRESENTATIVE NEVER PO INTED OUT THAT IN THE RELEVANT ASSESSMENT YEAR REVENUE AUDIT OBJECTION WAS INVOLVE D AND THE SAID AUDIT OBJECTION WAS ACCEPTED BY THE DEPARTMENT. NOWHERE IN THE ASSE SSMENT ORDER OR IN THE GROUNDS OF APPEAL OR AT THE TIME OF HEARING THIS FA CT WAS MENTIONED. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT TRIBUNAL HAS NOT COMMITTED ANY MISTAKE IN DISMISSING THE APPEAL FOLLOWING THE INSTRUCTION NO. 3/2011 DTD. 09.02.2011. WE, THEREFORE, REJECT THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/- SD/- ( *.#. , % D. K. SRIVASTAVA ) ( .#. -. / T. K. SHARMA) #( '/ / ACCOUNTANT MEMBER '/ /JUDICIAL MEMBER /#- 0/1/ ORDER DATE 15.10.2013 /RAJKOT *BT MA 46-RJT-2012- SHRI DILIPBHAI H JAVIA 3 !'# $%'& / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- THE ITO, WARD-1(2), JUNAGADH 2. /RESPONDENT- SHRI DILIPBHAI H JAVIA, PROP OF M/S SM ITH ENTERPRISE, JUNAGADH 3. '151 % & 6% / CONCERNED CIT-III, RAJKOT 4. & 6%- / CIT(A)-XXI, AHMEDABAD 5. :;< % , , / DR, ITAT, RAJKOT 6. <* >? / GUARD FILE. /#- '# / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT