The ITO, Ward-3(1)(3), Ahmedabad V. Balajay Infrastructure Private Limited, Ahmedabad

MA 82/AHD/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8981 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 25-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: S N DIVATIA
• Keywords: Depreciation; Tax effect; Unabsorbed depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (VIRTUAL COURT) BEFORE: SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI AMARJIT SINGH, ACCOUNTANT MEM BER THE ITO, WARD-3(1)(3), 4 TH FLOOR,403, B-WING, PRATYAKSH KAR BHAVAN, NR. POLYTECHNIC COLLEGE, AMWABADI, AHMEDABAD-380015 (APPELLANT) VS BALAJAY INFRASTRUCTURE PVT. LTD. 303, ASHIRWAD PARAS, 100 FEET ROAD, NR. CORPORATE ROAD, NR. PRAHLADNAGAR GARDEN CROSS ROAD, SATELLITE, AHMEDABAD-380015 PAN: AAECB7865K (RESPONDENT) REVENUE BY: SHRI L.P. JAIN, SR. D.R. ASSESSEE BY: SHRI S.N. DIVATIA, A.R . DATE OF HEARING : 04-12-2020 DATE OF PRONOUNCEMENT : 04-01-202 1 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THIS CROSS OBJECTION FILED BY THE REVENUE IS ARISIN G OUT OF THE ORDER OF THE ITAT VIDE ITA NO. 290/AHD/2017, A.Y. 2013-14 DATED 23-09-2019. 2. THE CONTENTS OF THE MISCELLANEOUS APPLICATION IS REPRODUCED AS FOLLOWS:- M.A. NO. 82/AHD/2020 (IN ITA NO. 290/AHD/2017) ASSESSMENT YEAR 2013-14 M.A. 82/AHD/2020 (IN I.T.A NO. 290/AHD/2017) A.Y. 2013-14 PAGE NO ITO VS. BALAJAY INFRASTRUCTURE PVT. LTD. 2 THE ASSESSEE HAD E-FILED ITS ORIGINAL RETURN OF I NCOME FOR THE A.Y. 2013-14 ON 30-09-2013 DECLARING TOTAL INCOME OF RS. NIL. ( CURRENT YEAR L OSS OF RS. 4,91,93,867/- WHICH INCLUDES BUSINESS LOSS OF RS. 4,90,24,029/- & UNABSORBED DEPRECIATION OF RS. 1,69,838/-). THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY UNDER MANUAL SELECTION FOR TH E REASON OF SPECIFIC AND VERIFIABLE INFORMATION OF TAX EVASION RECEIVED FROM DIT(INV) AHMEDABAD AFT ER OBTAINING APPROVAL OF CCIT AHMEDABAD- 2 , AHMEDABAD. THE ASSESSING OFFICER HAS PASSED ORDER U/S. 143(3) OF THE I.T. ACT ON 23.03.2016 AND MADE AN ADDITION OF RS. 2,26,77,928 ON ACCOUNT OF BOGUS BILLS TRANSACTIONS. THEREAFTER, THE ASSESSEE COMPANY HAS FILED AN APPEAL BEFORE THE LD.CIT(A)-9, AHMEDABAD. THE LD.CIT(A)-9, AHMEDABAD VIDE ITS ORDER DTD. 20.1 2.2016 , BASED ON HON'BLE TRIBUNAL, AHMEDABAD'S DECISION IN THE CASES OF M/S. N.K. PROT EINS LTD., CONFIRMED THE ADDITION 25% OF RS. 2,26,77,928/- I.E. RS. 56,69,482/-ON ACCOUNT OF INF LATED PURCHASES THROUGH THE PROCESS OF BOGUS BILLING AND ALSO DELETED THE ADDITION OF RS. 1,70,0 8,446/- THEREAFTER, THE DEPARTMENT HAS FILED AN FURTHER APP EAL BEFORE THE HON'BLE ITAT, AHMEDABAD AND HON'BLE ITAT, D BENCH, AHMEDABAD HAS DISMISSED THE REVENUE APPEAL AS PER CIRCULAR NO. 17/2019 DTD. 08.08.2019 STATING THAT T HE TAX EFFECT DOES NOT EXCEED THE PRESCRIBED MONETARY LIMIT WHICH IS NOW REVISED AT RS. 50 LACS. IN FACT, IN THIS CASE, NOTIONAL TAX EFFECT INVOLVED RS. 55,18,389/-WHICH IS MORE THAN THE LIMIT PRESCRIBED BY THE BOARD AS PER THE ABOVE SAID CIRCULAR. 3. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US, THE LD. DEPARTMENTAL REPRESENTATIVE HAS CONTENDED THAT THE ABOVE REFERRE D APPEAL HAS BEEN DISMISSED DUE TO LOW TAX EFFECT AS PER CIRCULAR NO. 17/2019 D TD. 08.08.2019 BUT THE NOTIONAL TAX EFFECT INVOLVED IN THIS APPEAL IS RS. 55,18,389 WHICH IS MORE THAN THE PRESCRIBED LIMIT I.E. 50 LACS IN THE ABOVE REFERRED CIRCULAR. THEREFORE, THIS MISCELLANEOUS APPLICATION MAY BE ALLOWED AND ITS OR IGINAL APPEAL BE HEARD ON MERIT. ON THE OTHER HAND, LD. AUTHORIZED REPRESENT ATIVE DOES NOT RAISE ANY OBJECTION ON IT. 4 WE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US LD. DEPAR TMENTAL REPRESENTATIVE HAS CONTENDED THAT THE NOTIONAL TAX EFFECT INVOLVED IN THIS CASE IS RS. 55,18,389/- WHICH IS BEYOND RS. 50 LACS AS PER CIRCULAR NO. 17/ 2019 DATED 08.08.2019 THIS IS AN APPARENT MISTAKE AS PER RECORDS AVAILABLE. LOOKING TO THE ABOVE FACTS AND CIRCUMSTANCES, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. THE M.A. 82/AHD/2020 (IN I.T.A NO. 290/AHD/2017) A.Y. 2013-14 PAGE NO ITO VS. BALAJAY INFRASTRUCTURE PVT. LTD. 3 REGISTRY IS DIRECTED TO FIX THIS CASE FOR HEARING I N DUE COURSE. ACCORDINGLY, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED . 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04-01-2021 SD/- SD /- (RAJPAL YADAV) (AMARJIT SINGH) VICE PRESIDENT A CCOUNTANT MEMBER AHMEDABAD : DATED 04/01/2021 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,