The ITO (International Taxation)-1, Ahmedabad V. M/s. Adani Power Rajasthan Ltd., Ahmedabad

MA 77/AHD/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1465 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: misc
• Appeal Filed On: 09-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: P M MEHTA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER MA NOS.76 & 77/AHD/2018 ( I.T.A. NOS.1531 & 1532/AHD/2017) [ASSESSMENT YEAR : 2016-17 (QUARTER -2 ND &3 RD )] THE INCOME TAX OFFICER (INTERNATIONAL TAXATION)-I AHMEDABAD / VS. ADANI POWER RAJASTHAN LTD. SHIKAR BUILDING NR.ADANI HOUSE MITHAKALI CIRCLE, NAVRANGPURA AHMEDABAD [PAN : AAGCA 9379 P] ( APPLICANT ) .. ( RESPONDENT ) APPLICANT BY : SHRI S.K. DEV, ADDL.CIT RESPONDENT BY : SHRI P.M. MEHTA, AR DATE OF HEARING 06/07/2018 DATE OF PRONOUNCEMENT 03 / 10 /201 8 / O R D E R PER MS. MADHUMITA ROY - JM: INITIALLY, TWO MISCELLANEOUS APPLICATIONS WERE FILE D BY THE DEPARTMENT FOR RECALLING THE ORDER DATED 19.12.2017 PASSED BY THE HONBLE ITAT WHEREBY AND WHEREUNDER THE ORIGINAL MATTER WERE DISMISSED SINCE THOSE WERE BELOW TAX EFFECT. LATER ON, IT WAS FOUND THAT THE COMBINED TAX EFFECT FROM QUARTER-2 AND QUARTER-3 IN FINANCIAL YEAR 2015-16 RELEVANT TO ASSESSMENT YEAR 2016-17 WA S RS.12,16,750/-, I.E. MORE THAN RS.10 LAKHS. THIS PARTICULAR ASPECT WAS NOT CONSIDE RED BY THE COORDINATE BENCH AND IN TERMS OF CONTENTION OF PARA 5 OF THE CBDT CIRCULAR NO.21/2015 DATED 10.12.2015 APPEAL CAN BE PREFERRED BEFORE ITAT. THE RELEVANT PORTIO N OF THE SAID CIRCULAR READS AS FOLLOWS: 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES I N THE CASE OF EVERY ASSESSEE. - 2 - MA NOS.76 & 77/AHD/2018 (IN ITA NOS.1531 & 1532/AHD/17) ITO VS. ADANI POWER RAJASTHAN LTD. ASST.YEAR 2016-17 (Q. 2 ND & 3 RD ) 2. DURING THE PENDENCY OF THE MATTER BEFORE ITAT, THE LATEST CBDT CIRCULAR NO.3/2018 DATED 11.7.2018 HAS COME INTO FORCE WHERE BY AND WHEREUNDER THE PECUNIARY JURISDICTION ON THE BASIS OF TAX EFFECT FOR THE ASS ESSMENT YEAR FOR PREFERRING APPEAL BEFORE ITAT HAS BEEN INCREASED UPTO THE LIMIT OF RS.20 LAK HS. 3. AT THE TIME OF HEARING OF THE INSTANT APPLICATI ONS, THE LD.REPRESENTATIVE OF THE REVENUE SUBMITTED BEFORE US THAT THE COMBINED TAX E FFECT FOR THE AY 2016-17 IS MORE THAN RS.20 LAKHS TAKING INTO CONSIDERATION OF THE T AX EFFECT OF EACH QUARTER 2, 3 & 4 BEING RS.4,49,378/- & RS.7,50,620/- RS.8,49,260/- RESPEC TIVELY. A DETAILED CHART OF TAX EFFECT OF THOSE QUARTERS HAS ALSO BEEN FILED BEFORE US BY THE REVENUE. HE THUS PRAYS FOR RECALLING OF THE ORDER DATED 19.12.2017 PASSED BY T HE TRIBUNAL IN ITA NOS.1531/AHD/2017 & 1532/AHD/2017 WHICH WERE DISMIS SED ON THE GROUND OF LOW TAX EFFECT. 4. WE FIND SUBSTANCE IN THE ARGUMENT MADE BY THE LD .REPRESENTATIVE OF THE REVENUE. TAKING INTO CONSIDERATION OF THE COMBINED TAX EFFECT OF MORE THAN 20 LAKHS FOR THE AY 2016-17 VIS-A-VIS CIRCULAR NO.3/2018 DATED 1 1.7.2018 WE RECALL THE ORDER DATED 19.12.2017 PASSED BY THE COORDINATE BENCH. THE MAT TER IS, THEREFORE, NEED TO BE HEARD ON MERIT. REGISTRY IS DIRECTED TO FIX THE HEARING OF REVENUES APPEALS IN ITA NO.1531/AHD/2017 & 1532/AHD/2017 IN DUE COURSE. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS FILED BY THE REVENUE ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 03/10/2018 SD/- SD/- ( PRAMOD KUMAR ) ( M S. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 03/ 10 /2018 .., .../ T.C. NAIR, SR. PS - 3 - MA NOS.76 & 77/AHD/2018 (IN ITA NOS.1531 & 1532/AHD/17) ITO VS. ADANI POWER RAJASTHAN LTD. ASST.YEAR 2016-17 (Q. 2 ND & 3 RD ) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A)-8, AHMEDABAD 5. $%& , ' , / DR, ITAT, AHMEDABAD 6. &*+ ,- / GUARD FILE. / BY ORDER, $ //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !'#, / ITAT, AHMEDABAD 1. DATE OF DICTATION .. (DICTATION-PAD 5-PAGES AT TACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER