The jT. CIT (OSD), Central Circle-1, Baroda V. Shri Sanjay B. Doshi, Vadodara

MA 61/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5364 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: BIREN SHAH
• Keywords: Retrospective amendment; Tax effect
• Section: 153A

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 .61 - 62 /AHD/2019 IN ./ IT(SS)A . NO .439 - 440 / AHD / 2017 / ASSTT. YEAR S : 2011 - 2012 & 2012 - 13 J .C.I.T, (OSD) CENTRAL CIRCLE - 1, BARODA . VS SHRI SANJAY B. DOSHI, B - 703, VARDHAMAN COMPLEX, NR. VIMALNATH SHOPPING COMPLEX, SUBHANPURA, BARODA . PAN : ACAPD4178J (APPLICANT) ( RESPON D ENT ) REVENUE BY : SH R I S.K. DEV , SR. D.R ASSESSEE BY : SHRI BIREN SHAH , 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 APPLICATION, THE REVENUE HAS REQUESTED FOR THE RESTORATION OF APPEAL S FILED BY IT BEARING IT(SS)A NO S . 439 - 440 / AHD/2017 FOR THE A . Y S 2011 - 12 & 2012 - 13 AS THERE IS MISTAKE APPARENT FROM THE RECORD I N THE ORDER OF THE ITAT DATED 30/ 07 / 2018 . THERE IS A COMMON ISSUE IN BOTH THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE , AND THE CONSOLIDATED ORDER M.A NO S.61 - 62 /AHD/2019 IN IT(SS)A NO S.439 - 440 /AHD/2017 A.Y S . 2011 - 12 & 2012 -- 13 2 WAS ALSO PASSED BY THIS TRIBUNAL. THEREFORE, WE ARE INCLINED TO PASS THE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. FIRST , W E TAKE M.A BEARING NO.61 /AHD/2019 ARISING OUT OF IT (SS) A NO.439 /A HD/2017 FOR ASSESSMENT YEAR 2011 - 12 . THE CONTENTS OF THE MISCELLANEOUS APPLICATION OF THE REVENUE READ AS UNDER: 3. THE DECISION OF THE LD. CIT(A) WAS NOT ACCEPTABLE AND HENCE DEPARTMENT FILED FURTHER APPEAL BEFORE THE HON'BLE ITAT VIDE IT(SS)A NO. 436 TO 440/AHD/2017 ON 06.12.2017 ON MERITS AS WELL AS CHALLENGING THE GROUNDS MENTIONED IN PARA 2.. FURTHER VIDE CBDTS CIRCULAR DATED 11.07.2018, THE HON'BLE ITAT DISMISSED REVENUE'S APPEAL INVOLVING TAX EFFECT OF LESS THAN RS. 20 LAKHS AS WITHDRAWN TAKING INTO CONSIDERATION THAT THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT AND ARE APPLICABLE ON PEN DING APPEALS ALSO. THE MERITS OF THE CASE AS WELL AS THE LEGAL ISSUE HAS NOT BEEN TAKEN INTO CONSIDERATION. HOWEVER, THE HON BLE ITAT HAS ALSO GIVEN LIBERTY THAT IN CASE ON RE VERIFICATION AT THE END OF THE A.O, REVENUE S CASE FALLS WITHIN THE AMBIT OF EXC EPTIONS PROVIDED IN THE CIRCULAR THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. 4. ON VERIFICATION OF THE CASE, IT IS OBSERVED THAT THE HON'BLE ITAT HAS DISMISSED THE DEPARTMENT'S APPEAL TAKING INTO CONSIDERATION ONLY THE TAX EFFECT, WHICH IS BELOW THE LIMIT. FURTHER, IT MUST BE MENTIONED THAT AS PER THE WEBSITE OF HON'BLE SUPREME COURT OF INDIA, AN SLP FILED BY THE DEPARTMENT AGAINST THE DECISION OF GUJARAT HIGH COURT IN CIT VS. SAUMYA CONSTRUCTION PVT. LTD. HAS BEEN 'DISPOSED AS DISMISSED' VIDE ORDER DATED 24.04.2018 OF HON'BLE SUPREME COURT OF INDIA. IN THIS REGARD, IT IS SUBMITTED THAT THE SLP HAS BEEN DISPOSED AS 'DISMISSED' BY THE HON'BLE COURT. HOWEVER, THERE IS NO SPEAKING ORDER AS SUCH AS TO WHY IT HAS BEEN DISMISSED. ALSO, THERE IS N O OBSERVATION OF THE COURT WITH REGARD TO INTERPRETATION AND SCOPE OF SECTION 153A OF THE ACT. THEREFORE, THE LEGAL QUESTION REGARDING INTERPRETATION OF SCOPE OF SECTION 153A OF THE ACT IS STILL OPEN AS THE INTERPRETATION THAT ADDITIONS MADE WITHOUT ANY IN CRIMINATING MATERIAL IN COMPLETE AND UNABATED ASSESSMENTS ARE NOT STIPULATED UNDER THE SECTION CLEARLY LIMITS SECTION 153A OF THE ACT AND GIVES IT AN INTERPRETATION NOT ORIGINALLY INCLUDED IN THE PROVISION WHEN IT WAS INSERTED. THUS, THOUGH THE AGGREGATE TAX EFFECT INVOLVED OF RS.56.735 / - IS BELOW THE PRESCRIBED LIMIT FOR FILING FURTHER APPEAL AND THE ISSUE INVOLVED ALSO FALLS WITHIN THE AMBIT OF THE EXCEPTIONS 10(A) FOR FILING FURTHER APPEAL AS PER BOARD'S INSTRUCTION NO. 3/2018 DATED 11.07.2018, THE UNDE RSIGNED PRAY YOUR HONOUR TO RESTO RE THE APPEAL IT(SS)A/436 TO 440/AHD/2017 FOR A.Y. 2008 - 09 TO 2012 - 13 AND AN INTIMATION OF HAVING RESTORED THE APPEAL BEFORE THE HON'BLE ITAT MAY KINDLY BE SENT TO THIS OFFICE. IT IS ALSO PRAYED THAT THE HON'BLE ITAT MAY K INDLY PASS AN APPROPRIATE ORDER ON MERITS, AS IT MAY DEEM FIT. IT IS ALSO SUBMITTED THAT NO MISCELLANEOUS APPLICATION U/S 254(2) HAS BEEN FILED EARLIER IN THIS CASE. THE APPELLANT CRAVES TO ADD TO, AMEND OR ALTER THE ABOVE GROUNDS AS MA) BE DEEMED NECESSA RY. M.A NO S.61 - 62 /AHD/2019 IN IT(SS)A NO S.439 - 440 /AHD/2017 A.Y S . 2011 - 12 & 2012 -- 13 3 2 . IN VIEW OF THE ABOVE, THE LEARNED DR BEFORE US PRAYED TO RECALL THE ORDER S OF THE ITAT AS DISCUSSED ABOVE . 3 . ON THE OTHER HAND, THE LEARNED AR BEFORE US SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD AS ALLEGED BY THE REVENUE. THE LD. AR VEHEMENTLY SUPPORTED THE ORDER THE TRIBUNAL. 4 . WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE IMPUGNED CAS E FALLS WITHIN THE AMBIT OF THE EXCEPTION 10(A) OF THE CIRCULAR ISSUED BY THE CBDT CIRCULAR NO. 3/2018 DATED 11/07/2018. 4 .1 HOWEVER, WE NOTE THAT THE CASE LAW RELIED UPON BY THE REVENUE IN SUPPORT OF ITS CONTENTION HAS REACHED ITS FINALITY BY THE ORDER OF THE HON BLE SUPREME COURT. THIS FACT WAS ALSO ADMITTED BY THE REVENUE IN THE MISCELLANEOUS APPLICATION FILED BY IT AS DISCUSSED IN THE PRECEDING PARAGRAPH. 4 .2 THUS WE ARE OF THE VIEW THAT THE IMPUGNED ISSUE DOES NOT FALL IN THE EXCEPTION OF THE CBDT CIRCULAR AS SUGGESTED BY THE REVENUE I.E. WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE IS UNDER CHALLENGE . ACCORDINGLY WE HOLD THAT THERE IS NO MISTAKE APPARENT FROM RECORD AS ALLEGED BY THE R EVENUE. HENCE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. M.A NO S.61 - 62 /AHD/2019 IN IT(SS)A NO S.439 - 440 /AHD/2017 A.Y S . 2011 - 12 & 2012 -- 13 4 NOW COMING TO THE M.A NO.62 /AHD/2019 PERTAINING TO THE IT(SS)A NO.440 /AHD/2 017 FOR THE ASSESSMENT YEAR 2012 - 13 . 5 . AT THE OUTSET, WE NOTE THAT WE HAVE ALREADY DECIDED T HE IDENTICAL ISSUE IN M.A. NO.61 /AHD/2019 AS DISCUSSED ABOVE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THEREFORE, R ESPECTFU LLY FOLLOWING THE SAME THE ABOVE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALSO DISMISSED . 6. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATION S FILED BY THE REVENUE ARE DISMISSED. 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