The Jt. Commissioner of Income Tax(OSD), Central Circle-1, Baroda V. Shri Mahendra R. Kankaria, Baroda

MA 78/AHD/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2544 (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: C
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: BIRAN B SHAH
• Keywords: Tax effect
• Section: 153A; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I AMARJIT SINGH , ACCOUNTANT MEMBER AND SMT. MADHUMITA ROY , JUDICIAL MEMBER THE JT. CIT, CENTRAL CIRCLE - 1, BARODA (APPELLANT) VS SHRI MAHENDRA R. KANKARIA, B - 404, VARDHMAN COMPLEX, SUBHANPURA MAIN ROAD, SUBHANPURA, BARODA PAN: ADWPK7648D (RESPO NDENT) REVENUE BY : S H RI LALIT P. JAIN , SR. D . R. ASSESSEE BY: SHRI BIRAN B. SHAH , A.R. DATE OF HEARING : 19 - 07 - 2 019 DATE OF PRONOUNCEMENT : 20 - 08 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THE ABOVE TWO MISC. APPLICATIONS ARE FILED BY THE REVENUE SEEKING RECALL OF THE TRIBUNAL ORDER DATED 31.7.2018, VIDE WHICH, THE TRIBUNAL HAS DISMI SS ED A BUNCH OF APPEALS OF THE REVENUE IN LIMINE DUE TO LOW TAX EFFECT BY APPLYING INSTRUCTIONS OF THE CBDT VIDE CIRCULAR NO.3 OF 2018 DATED 11.7.2018. IN THIS G ROUP OF APPEALS, THE ABOVE TWO APPEALS WERE ALSO NOTIFIED AND ACCORDINGLY DISMISSED BY THE TRIBUNAL DUE TO NON - MAINTAINABILITY. THE REVENUE IS NO W SEEKING RECALL OF THE IM PUGNED ORDER QUA THE ABOVE TWO APPEALS. M.A. NOS. 78 & 79/AHD/ 2019 (IN I T A NO S . 252 & 253 / A HD/20 17 ) A SS ESSMENT YEAR 2011 - 12 TO 2012 - 13 M.A. NO S . 78 & 79 /AHD/20 19 A.Y. 2011 - 12 & 2012 - 13 PAGE NO JT. CIT VS. SHRI MAHENDRA R. KANKARIA 2 2. WHILE TAKING US THROUGH THE MAS., THE LD.DR SUBMITTED THAT PLEADINGS MADE IN THESE TWO MAS ARE SIMILARLY WORDED EXCEPT QUANTUM. THEREFORE, WE TAKE UP SUBMISSION MADE IN THE MA NO.78 /AHD /2019 FOR THE SAKE OF CONVENIENCE OF ADJUDICATION. IN THIS MA, IT IS PLEADED BY THE REVENUE THAT IMPUGNED ORDER OF THE TRIBUNAL IS LIABLE TO BE RECALLED IN VIEW OF THE FACT THAT THE ISSUE INVOLVED IN THE APPEAL FALLS WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN CLAUSE 10(A) OF THE CBDT CIRCULAR NO.3 OF 2018 DATED 11.7.2018. THE RELEVANT CONTENTIONS OF THE REVENUE MADE IN THE MA READS AS UNDER: 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 CONSTRU CTION 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 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 ADDITIONS 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 W HEN IT WAS INSERTED. THUS, THOUGH THE AGGREGATE TAX EFFECT INVOLVED OF RS.1,95,124/ - 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 TO RESTORE THE APPEAL IT(SS)A/247/AHD/2017 FOR A.Y. 2010 - 11 AND AN INTIMATION OF HAVING RESTORED THE APPEAL BEFORE THE HON'BLE ITAT MAY KINDLY BE SENT TO THIS OFFICE. IT IS ALSO PR AYED THAT THE HON'BLE ITAT MAY KINDLY 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. 3. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF RECALL OF THE IMPUGNED ORDER AS PRAYED BY THE REVENUE. WE FIND THAT THE TRIBUNAL HAS DISMISSED THE APPEALS OF THE REVENUE ON THE GROUND THAT TAX EFFECT IN THAT APPEAL IS BELOW RS.20 LAKHS, AND THEREFORE, THE SAME IS NOT MAINTAINABLE IN VIEW OF THE RECENT CBDT C IRCULAR NO.3 OF 2018. IT IS NOT DISPUTED BY THE REVENUE THAT THE TAX EFFECT INVOLVED ON THE DISPUTED ADDITION IS LESS THAN RS.20 LAKHS, AND THE REVENUE IN ITS OWN SUBMISSIO N ADMITTED THAT TAX EFFECT IS RS. 15,184/ - FOR T HE ASSTT.YEAR 2011 - 12 AND RS. M.A. NO S . 78 & 79 /AHD/20 19 A.Y. 2011 - 12 & 2012 - 13 PAGE NO JT. CIT VS. SHRI MAHENDRA R. KANKARIA 3 7,89, 960/ - FOR THE FOR THE ASSTT.YEAR 2012 - 13. HOWEVER, THE CASE OF THE REVENUE IS THAT ITS APPEAL FALLS WITHIN THE SCOPE OF EXCEPTIONS PROVIDED IN CLAUSE 10(A) OF THE ABOVE CIRCULAR, THEREFORE, ALL TWO APPEALS HAVE TO BE DECIDED ON MERIT EVEN THOUGH TAX EFFEC T INVOLVED THEREIN IS BELOW TAXABLE LIMIT PRESCRIBED BY THE CBDT FOR FILING APPEAL BEFORE THE TRIBUNAL. WE FIND FROM THE CIT(A) S ORDER THAT THE CIT(A) HAS ALLOWED THE APPEALS OF THE ASSESSEE WHILE CONSIDERING VARIOUS CASE LAWS INCLUDING THE DECISION IN THE CASE OF SAUMYA CONSTRUCTION 387 ITR 529 (GUJ). REVENUE IN MA ITSELF HAS CONTENDED THAT SLP AGAINST DECISION OF HON BLE GUJARAT HIGH COURT IN THE CASE OF SAUMYA CONSTRUCTION HAS BEEN DISMISSED BY THE HON BLE SUPREME COURT VIDE ORDER DATED 24.4.2018. THERE IS NOTHING BEFORE US TO SHOW THAT CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE IS UNDER CHALLENGE ON THE ISSUE, AS STIPULATED IN THE 10(A) OF THE ABOVE CBDT CIRCULAR. IN OUR VIEW, THERE IS NO JUSTIFICATION OR MERIT IN THE PLEA OF THE REVENUE FOR RECALL OF THE IMPUGNED ORDER OF THE TRIBUNAL. MAS OF THE REVENUE BEING DEVOID OF ANY MERIT, STAND REJECTED. 4. IN THE RESULT, BOTH THE MISC. APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 2 0 - 08 - 201 9 SD/ - SD/ - ( MADHUMIT A ROY ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 20 /08 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. M.A. NO S . 78 & 79 /AHD/20 19 A.Y. 2011 - 12 & 2012 - 13 PAGE NO JT. CIT VS. SHRI MAHENDRA R. KANKARIA 4 BY ORDER/ , / ,