ITO, Ward-5(2)(4), Ahmedabad V. S.K.Patel Family Trust, Ahmedabad

MA 54/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6431 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 05-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Tax effect; Set aside
• Section: 143(3); 244A; 201; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS MADHUMITA ROY , JUDICIAL MEMBER M.A NO. 54/AHD/2019 W ITH ./ ITA NO. 1250 / AHD/ 2018 / ASSTT. YEAR: 1982 - 19 83 INCOME TAX OFFICER, WARD - 5(2 )(1), AHMEDABAD. VS S.K. PATEL FAMILY TRUST , NIRMA HOUSE , ASHRAM ROAD , A HMEDABAD . P AN: AABTS9382E (APPLICANT) (RESPONENT) REVENUE BY : SHRI L.P. JAIN, SR.D.R ASSESSEE BY : SHRI BANDISH SOPARKAR, A.R / DATE OF HEARING : 06 / 09 /201 9 / DATE OF PRONOUNCEMENT: 16 / 10 /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 CONSOLIDATED ORDER DATED 27/07 /2018 IN ITA NO. 1250/AHD/2019 PASSED IN GROUP OF CASES AS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SAID ORDER. 2. IN THE MISCELLANEOUS APPLICATION THE REVENUE HAS SUBMITTED AS FOLLOWS: M.A NO. 54 /AHD/2019 IN ITA NO.1250/AHD/2018 A.Y.1982 - 83 . 2 1, BEING AGGRIEVED AND DISSATISFIED BY THE ORDER DATED 27/07/2018 PASSED BY THE HON'BLE ITAT, THE APPELLANT BEGS TO PREFER THIS MISCELLANEOUS APPLICATION ON THE FOLLOWING AMONGST OTHER FACTS AND GROUNDS: - [A] IN THIS CASE, ASSESSMENT ORDER U/S. 143(3) R.W.S. 161 & 144B OF THE ACT WAS PASSED ON 23.03.1983, THEREAFTER, ORDER U/S. 154 OF THE ACT WAS PASSED ON 20.03.2015 AS THE INTEREST U/S. 244A WAS SHORT GRANTED TO THE ASSESSEE. THE ASSESSEE HAS FILED AN APPEAL BEFORE THE U/S. 244A OF THE ACT FOR THE DELAYED PERIOD IN ISSUING THE REFUND. [B] THE ASSESSEE HAS FILED AN APPEAL ON THE ISSUE OF ADDITIONAL COMPENSATION IN DELAY IN GRANTING INTEREST U/S. 244A OF THE ACT. DURING THE COURSE OF APPELLATE PROCEEDINGS RAISED THE ISSUE REGARDING ADDITIONAL COMPENSATION ON DE LAYED REFUNDS AND CONTENDED THAT IT IS ELIGIBLE FOR GRANT OF INTEREST ON INTEREST. [C] THE CIT(A) VIDE ORDER DATED 05.03.2018 HAD ALLOWED THE APPEAL OF THE ASSESSEE AND DIRECTED THE AO TO PAY ADDITIONAL COMPENSATION ON THE AMOUNT OF INTEREST TO THE ASS ESSEE. [D] BEING AGGRIEVED TO THE ORDER OF THE LD. CIT(A) THE REVENUE FILED APPEAL BEFORE HON'BLE ITAT VIDE ITA NO. 1250/AHD/2018. THE HON'BLE ITAT VIDE IT(SS)A NO. :427/AHD/2017 & OTHER 230 APPEALS AND RELATED 11 COS AS PER ANNEXURE - 1 DATED 27.07.2018 HAS DISPOSED OFF THE APPEAL OF THE REVENUE IN VIEW OF THE CBDT CIRCULAR NO. 3/2018 DATED LITHE JULY 2018 AS THE THE APPEAL, INVOLVING TAX EFFECT LESS THAN RS. 20 LAKHS. [E] HOWEVER, ON PERUSAL OF THE RECORDS, IT IS NOTICED THAT TAX EFFECT IN THIS CASE IS RS. 21,42,869/ - WHICH EXCEEDS THE MONETARY LIMIT PRESCRIBED BY THE CBDT. THE HON'BLE ITAT HAS SUMMARILY DISMISSED THE APPEAL OF THE REVENUE OWING TO WRONG COMPUTATION OF TAX EFFECT. THEREFORE, THE HON'BLE ITAT IS REQUESTED TO RESTORE THE APPEAL OF THE REVENUE. 2. IN THE PREMISES STATED ABOVE, THE APPELLANT SUBMITS THAT THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW ARISE IN MISCELLANEOUS APPLICATION: [A]. 'THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS TO ALLOW THE ASSESSEE FOR GRANT OF COMPENSATION QUANTIFIED ON THE FORM OF INTEREST ON INTEREST, ALTHOUGH THE LD.CIT(A) IS BEING A QUASI JUDICIAL AUTHORITY AND NOT A COURT, IS NOT EMPOWERED TO GRANT COMPENSATION IN ABSENCE OF ANY PROVISION IN THE ACT AND IN VIEW OF THE JUDGEMENT OF HON'BLE SUPREME COURT IN THE CASE OF GUJARAT FLUORO CHEMICALS (2014) 42 TAXMANN.COML(SC). [B], IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE ORDER OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTENT. 2. THE LD. DR BEFORE US SUBM ITTED THAT THE APPEAL FILED BY THE REVENUE WAS DISMISSED BY THE HON BLE TRIBUNAL BY HOLDING THAT THE TAX EFFECT IS LESS THAN RS. 20 LAKHS AS PRESCRIBED IN THE CIRCULAR ISSUED BY THE CBDT BEARING M.A NO. 54 /AHD/2019 IN ITA NO.1250/AHD/2018 A.Y.1982 - 83 . 3 NO.03/2018 DATED 11/07/2018. HOWEVER, THE TAX EFFECT IN THE IMPUGNED CASE INVOLVES A SUM IN DISPUTE OF RS. 21,42,869/ - WHICH IS EXCEEDING THE MON ETARY LIMIT OF RS. 20 LAKHS. ACCORDINGLY, THE LD. DR SUBMITTED THAT THERE IS A MISTAKE IN THE ORDER OF ITAT APPARENT FROM RECORD AND ACCORDINGLY PRAYED TO RECALL THE ORDER PASSED BY IT. 3. ON THE OTHER HAND, THE LD.AR FAIRLY CONCEDED THE FACT THAT CONSIDERING THE CBDT CIRCULAR BEARING NO.03/2018 DATED 11/07/2018 THE TAX INVOLVED IN THE IMPUGNED CASE EXCEEDS THE MONETARY LIMIT AS SPECIFIED BY THE CBDT IN ITS CIRCULAR. 4. HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE TAX EFFECT INVOLVED IN THE APPEAL IS EXCEEDING THE LIMIT SPECIFIED BY THE CBDT IN ITS CIRCULAR B EARING NO.03/2018 DATED 11/07/2018 . THUS, THE SAME CANNOT BE DISMISSED DUE TO LAW TAX EFFECT. ACCORDINGLY, WE HOLD THAT A MISTAKE HAS BEEN CREPT IN T HE ORDER PASSED BY THE TRIBUNAL, BEING APPARENT FROM RECORD. HENCE, WE RECALL THE O RDER PASSED BY THE ITAT DATED 27 /07/2018. 5. IN THE RESULT, T HE G ROUND RAISED BY THE REVENUE IN ITS MISCELLANEOUS APPLICATION IS ALLOWED. COMING TO THE REVENUE S APPEAL IN ITA NO.1250/AHD/2018 FOR AY 1982 - 83 . 6. THE LD.AR AT THE TIME OF HEARING OF MISCELLANEOUS APPLICATION FILED BY THE REVENUE PRAYED TO THE BENCH T O HEAR THE CASE ON MERIT AND DECIDE THE ISSUE AS PER THE PROVISIONS OF LAW. M.A NO. 54 /AHD/2019 IN ITA NO.1250/AHD/2018 A.Y.1982 - 83 . 4 7. THE LD. DR DID NOT OPPOSE THE HEARING OF THE CASE ON MERIT. 8. IN VIEW OF THE CONCESSION EXTENDED BY THE LD. D R, WE PROCEED TO HEAR THE CASE ON MERIT. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1.1 THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS TO ALLOW THE ASSESSEE FOR GRANT OF COMPENSATION QUANTIFIED ON THE FORM OF INTEREST ON INTEREST, ALTHOUGH THE LD.CIT(A) IS BEING A QUASI JUDICIAL AUTHORITY AND NOT A COURT, IS NOT EMPOWERED TO GRANT /COMPENSATION IN ABSENCE TO ANY PROVISION IN THE ACT AND IN VIEW OF THE JUDGEMENT OF HON BLE SUPREME COURT IN THE CASE OF GUJARAT FLUORO CHEMICAL (2014) 42 TAXMANN.COM (SC) 1.2 IT IS THEREFORE PRAYED THAT T HE ORDER OF THE LD.CUT(A) MAY BE SET ASIDE AND THAT OF THE ORDER OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTENT. 9. AT THE OUTSET, IT WAS NOTICED THAT THE LIMIT FOR FILING THE APPEAL BY THE REVENUE BEFORE THE ITAT WAS ENHANCED BY THE CBDT IN IT S CIRCULAR BEARING NO.17 OF 2019 DATED 08/08/2019 FROM RS. 20 LAKHS TO RS.50 LAKHS WHICH IS APPLICABLE ON THE PENDING APPEALS AS HELD BY THIS TRIBUNAL IN THE CASE OF ITO V/S. DINESH MADHAVLAL PATEL IN ITA NO.1398/AHD/2004 FOR AY 1998 - 99 VIDE ORDER DATED 14 /08/2019. THE RELEVANT EXTRACT OF THE CIRCULAR IS REPRODUCED AS UNDER: 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATION. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME - TAX CASES BE ENHANCED FURTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY. THE TABLE FOR MONETARY LIMITS SPECIFIED IN PARA 3 OF THE CIRCULAR SHALL READ AS FOLLOWS: S.NO. APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (RS.) 1 BEFORE APPELLATE TRIBUNAL 50 , 00 , 000 2 BEFORE HIGH COURT 1 , 00 , 00 , 000 3 BEFORE SUPREME COURT 2 , 00 , 00 , 000 M.A NO. 54 /AHD/2019 IN ITA NO.1250/AHD/2018 A.Y.1982 - 83 . 5 10. FROM THE ABOVE CIRCULAR, THERE IS NO AMBIGUITY THAT THE APPEAL FILED BY THE REVENUE INVOLVING TAX EFFECT OF RS. 50 LAKHS IS NOT MAINTAINABLE. IN THE CASE ON HAND, THE TAX EFFECT OF RS. 21,42,869/ - ONLY. THEREFORE, THE IMPUGNED APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 11. BEFORE PARTING, WE ARE INCLINED TO MAKE IT CLEAR THAT REVENUE IS AT LIBERTY TO MOVE AN APPLICATION FOR RECALLING THE ORDER IF THE CASE OF THE REVENUE FALLS IN THE EXCEPTION AS PROVIDED IN THE CBDT CIRCULAR BEARING NO.3 OF 2018 READ WITH THE CBDT CIRCULAR NO.17 OF 2019 DATED 08/08/2019 . HENCE, WE DISMISS THE APPEAL FILED BY THE REVENUE. 12. IN THE COMBINED RESULT, MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 16 / 10 / 201 9 AT AHMEDABAD. - SD - ( MS MADHUMITA ROY ) JUDICIAL MEMBER - SD - ( WASEEM AHMED ) ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 16 / 10 / 201 9 MANISH