Jt.CIT(OSD), Central Circle-1, Baroda V. Smt. Nirali M. Doshi, Baroda

MA 76/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6437 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Retrospective amendment; Tax effect
• Section: 153A; 201; 254(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS MADHIMITA ROY , JUDICIAL MEMBER M.A NO .76 /AHD/2019 IN ./ IT(SS)A . NO . 3 / AHD / 2018 / ASSTT. YEAR 2011 - 2012 J .C.I.T (OSD) , CENTRAL CIRCLE - 1, BARODA. VS SMT NIRALI MEHUL DOSHI, 20 PARK VIEW COMPLEX , OPP. VIMALNATH COMPLEX , BARO D A . PAN : AKLPD5243K (APPLICANT) ( RESPON D ENT ) REVENUE BY : SH R I L.P. JAIN , SR. D.R ASSESSEE BY : SMT. IRA KAPOOR, 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 APPLICATION S , THE REVENUE SEEKS FOR RECALL OF THE CONSOLIDATED ORDER DATED 27 /07/ 2018 IN ITA NO. 3 OF 2018 PASSED IN GROUP OF CASES AS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SAID ORDER. THE CONTENTS OF THE MISCELLANEOUS APPLICATION OF THE REVENUE READ AS UNDER: M.A NO .76 /AHD/2019 IN IT(SS)ANO. 3/AHD/2018 A.Y .2011 - 12. 2 3. THE DECISION OF THE LD. CIT(A) WAS NOT ACCEPTABLE AND HENCE DEPARTMENT FILED FURTHER APPEAL BEFORE THE H ON'BLE ITAT VIDE IT(SS)A NO. 3 /AHD/2017 ON 01 . 01.2018 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DATED 11 .07.2018, THE HON'BLE ITAT DISMISSED REVENUE'S APPEAL INVOLVING TAX EFFECT OF LESS THAN RS. 20 LAKHS AS WITHDRAWN TAKING INTO CONSIDERATION THAT THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT AND ARE APPLICABLE ON PENDING APPEALS ALSO .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 THE CASE ON VERIFICATION AT THE END OF THE A.O REVENUE S CASE FALLS WITHIN THE AMBIT OF EXCEPTIONS 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 DIS MISSED. ALSO, THERE IS NO 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 ADDIT IONS MADE WITHOUT ANY INCRIMINATING 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. THU S, THOUGH THE AGGREGATE TAX EFFECT INVOLVED OF RS.4 , 76.216 / - 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 UNDERSIGNED PRAY YOUR HONOUR T O RESTOR E THE APPEAL IT(SS)A/ 3 /AHD/2018 FOR A.Y. 2011 - 12 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 KINDLY PASS AN APPROPRIATE ORDER ON MERITS, AS IT MAY DEEM FIT. IT IS ALSO SUBMITTED THAT NO MISCELLANEO US 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 NECESSARY. 2 . IN VIEW OF THE ABOVE, THE LEARNED DR BEFORE US PRAYED TO RECALL THE ORDER S PASSED BY THE ITAT A S DISCUSSED ABOVE . M.A NO .76 /AHD/2019 IN IT(SS)ANO. 3/AHD/2018 A.Y .2011 - 12. 3 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 CASE FALLS WITHIN THE AMBIT OF THE EXCEPTION SPECIFIED IN 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 HAS REACHED TO ITS FINALITY BY THE ORDER OF THE HON BLE SUPREME COURT. THIS FACT WAS ALSO ADMITTED BY THE REVENUE IN THE MISCELLANEOUS APPLICATION FI LED 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. 5 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. M.A NO .76 /AHD/2019 IN IT(SS)ANO. 3/AHD/2018 A.Y .2011 - 12. 4 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