The ITO, Ward-5(2)(1),, Ahmedabad v. Smt. Nasimbanu Majidbhai Shaikh,, Ahmedabad

ITA 1704/AHD/2016 | 2011-2012
Pronouncement Date: 14-11-2019 | Result: Dismissed

Appeal Details

RSA Number 170420514 RSA 2016
Assessee PAN AKUPS9505J
Bench Ahmedabad
Appeal Number ITA 1704/AHD/2016
Duration Of Justice 3 year(s) 4 month(s) 22 day(s)
Appellant The ITO, Ward-5(2)(1),, Ahmedabad
Respondent Smt. Nasimbanu Majidbhai Shaikh,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2019
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 14-11-2019
Date Of Final Hearing 23-10-2019
Next Hearing Date 23-10-2019
Last Hearing Date 09-09-2019
First Hearing Date 09-09-2019
Assessment Year 2011-2012
Appeal Filed On 22-06-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I RAJPAL YADAV JUDICIAL MEMBER AND SHRI AMARJIT SINGH ACCOUNTANT MEMBER THE ITO WARD - 5(2)(1) AHMEDABAD (APPELLANT /RESPONDENT ) VS SMT. NASIMBANU MAJIDBHAI SHAIKH C/O. SHAIKH & CO. NR. VISHALA CIRCLE SARKHEJ AHMEDABAD PAN:AKUPS9505J (RESPONDENT /CROSS OBJECTOR ) RE VENUE BY : S H RI VINOD TANWANI SR. D . R. ASSESSEE BY: SHRI BIREN SHAH A.R. DATE OF HEARING : 23 - 10 - 2 019 DATE OF PRONOUNCEMENT : 14 - 11 - 2 019 / ORDER P ER : AMA RJIT SINGH ACCOUNTANT MEMBER : - THIS APPEAL FILED BY REVENUE AND CROSS OBJECTION BY ASSESSEE FOR A. Y. 2011 - 12 ARI SE FROM ORDER OF THE CIT(A) - 5 AHMEDABAD DATED 02 - 03 - 2 016 IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961; IN SHORT THE ACT . 2 . AT THE OUTSET AFTER GOING THROUGH THE GROUNDS OF APPEAL AND THE IMPUGNED ORDERS OF THE REVENUE AUTHORITIES BELOW A QUERY WAS RAISED BY THE I T A NO . 1704 & CO NO. 11 6 / A HD/20 16 A SS ESSMENT YEAR 2011 - 12 I.T.A NO. 1704 & CO NO. 116 /AHD/20 16 A.Y. 2011 - 12 PAGE NO IT O VS. M/S. NASIMBANU MAJIDBHAI SHAIKH 2 BENCH AS TO APPLICABILITY AND MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE IN VIEW OF RECENT CBDT CIRCULAR NO. 17/2019 DATED 08 - 08 - 2019 RESTRICTING THE FILLING OF THE APPEAL BY THE REVENUE WH ERE THE TAX EFFECT IS BELOW RS.5 0 LAKHS THE LD. DR DID NOT DISPUTE THE SAME AND SUBMITTED THAT THE ISSUE IS LEFT TO THE TRIBUNAL TO BE DECIDED IN ACCORDANCE WIT H LAW. 3 . WE FIND THAT THE APPEAL O F THE REVENUE IS PRESENTED ON 22 .6 .2016 . ON 8.8.2019 THE CBDT HAS ISSUED INSTR UCTIONS BEARING NO. 17 OF 2019 UNDER FILE N O. F. NO. F. NO. 279/MISC. 142/2007 - ITJ(PT.) PROHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIRTUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.5 0 LAKHS. THE INSTRUCTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT MEANING THEREBY THESE INSTRUCT IONS ARE APPLICABLE ON PENDING APPEALS ALSO. IN THE PRESENT CASE TAX EFFECT ON THE TOTAL INCOME ASSESSED MINUS THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUE AGAINST WHICH AP PE AL IS FILED IS LESS THAN RS.5 0 LAKHS. FURTHER THE CASE OF THE REVENUE DOES NOT FALL WITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR. THUS KEEPING IN VIEW THE ABOVE CBDT CIRCULAR AND PROVISIONS OF SECTION 268A OF THE INCOME TAX ACT WE ARE OF TH E VIEW THAT THE PRESENT APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. IT IS ACCORDINGLY DISMISSED. HOWEVER IT IS OBSERVED THAT IN CASE ON RE - VERIFICATION AT THE END OF THE AO IT COMES TO THE NOTICE THAT THE TAX EFFECT IS MORE OR REVENUE S CASE FALLS W ITHIN THE AMBIT OF EXCEPTIONS PROVIDED IN THE CIRCULAR THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATION SHOULD BE FILED WITHIN THE TIME PERIOD PRESCRIBED IN THE ACT. IN I.T.A NO. 1704 & CO NO. 116 /AHD/20 16 A.Y. 2011 - 12 PAGE NO IT O VS. M/S. NASIMBANU MAJIDBHAI SHAIKH 3 VIEW OF THE ABOVE THE APP EAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT. CROSS OBJECTION NO. 116/AHD/2016 FILED BY ASSESSEE 4 . THE ASSESSEE HAS FILED CROSS OBJECTION AGAINST THE DECISION OF LD. CIT(A) IN RESTRICTING THE ADDITION U/S. 41(1) OF THE ACT TO THE EXTENT OF RS. 29 24 385/ - AS AGAINST ADDITION OF RS. 1 50 52 022/ - MADE BY THE ASSESSING OFFICER AS PER ASSESSMENT ORDER U/S. 143(3) OF THE ACT. THE LD. CIT(A) HAS STATED THAT THE ASSESSEE HAS RECEIVED ADVANCE DURING THE YEAR AMOUNTING TO RS. 18 78 385/ - AND RS. 10 46 000/ - HOWEVER THE MATERIAL WAS NOT SUPP LIED THEREFORE THE AMOUNT OF RS. 29 24 385/ - WAS TREATED AS CESSATION OF LIABILITY U/S. 40(1) OF THE ACT. 5 . WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE AND PERUSED THE MATERIAL ON RECORD. REGARDING AMOUNT OF RS. 18 78 385/ - THE ASSESSEE HAS SUBMITTED THAT THIS AMOUNT WAS RECEIVED AND THE SAME REMAINED UNPAID BECAUSE OF NOT PURCHASING OF THE GOODS BY THE PURCHASED PARTIES TILL THE END OF THE YEAR. IN RESPECT OF REMAINING AMOUNT OF RS. 10 46 000/ - THE ASSESEE HAS SUBMITTED THAT BECAUSE OF PREVAILING DISPUTE WITH THE PARTIES THE MATERIALS /GOODS COULD NOT BE SUPPLIED WITHIN STIPULATED PERIOD AND THE SAME WAS SHOWN AS OUTSTANDING LIABILITY. IT IS CLAIMED THAT COPIES OF LEDGER ACCOUNT AND CONFIRMATION OF THE PARTIES S UBMITTED AND CONTENDED THAT THE TRACTOR ADVANCES WERE RECEIVED THROUGH CHEQUES EITHER I N YEAR UNDER CONSIDERATION OR EARLIER ASSESSMENT YEARS AND THEY WERE EITHER SETTLED IN SUBSEQUENT YEAR OR REMAINED UNPAID DUE TO CERTAIN DISPUTES WITH THE PARITIES . I N THIS REGARD THE LD. COUNSEL HAS REFERRED THE VARIOUS PAGES OF PAPER BOOK COMPRISING I.T.A NO. 1704 & CO NO. 116 /AHD/20 16 A.Y. 2011 - 12 PAGE NO IT O VS. M/S. NASIMBANU MAJIDBHAI SHAIKH 4 DETAIL/COPIES OF DOCUMENTS FURNISHED BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A) AT THE TIME OF ASSESSMENT AND APPELLATE PROCEEDINGS. AFTER CONSIDERING THE ABOVE DETA ILS AND FACTS WE RESTORE THE IMPUGNED ISSUE RAISED IN THE CROSS OBJECTION FILED BY THE ASSESSEE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH AFTER EXAMINATION/VERIFICATION OF THE DETAIL REFER RED IN THE PAPER BOOK. ACCORDINGLY THE CROSS OBJEC TION FILED BY THE ASSESSEE IS SET ASIDE TO THE FILE OF ASSESSING OFFICER FOR DECIDING DE - NOVO AS DIRECTED ABOVE AFTER AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE 6 . IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED AND THE CROSS OB JECTION OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PR ONOUNCED IN THE OPEN C OURT O N 14 - 11 - 201 9 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 14 /11 / 2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER/ /