The ITO, Ward-4(3),, Ahmedabad v. Himanshu Silk Mills Pvt.Ltd.,, Ahmedabad

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL SHRAWAT JUDICIAL MEMBER AND SHRI D.C. AGRAWAL ACCOUNTANT MEMBER DATE OF HEARING : 11/05/2010 DRAFTED ON: 11/0 5/2010 ITA NO.4219/AHD/2007 ASSESSMENT YEAR : 2003-04 THE INCOME TAX OFFICER WARD-4(3) AHMEDABAD VS. HIMANSHU SILK MILLS PVT.LTD. 229 NEW CLOTH MARKET AHMEDABAD 380 002 PAN/GIR NO. : AAACH 5477 P (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI M.C. PANDIT SR.DR RESPONDENT BY: SHRI HITESH P. SHAH O R D E R PER SHRI MUKUL SHRAWAT JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WH ICH HAS BEEN EMANATED FROM THE ORDER OF THE LEARNED CIT(APPEALS) -VIII AHMEDABAD DATED 10/09/2007. THE FOLLOWING GROUNDS HAVE BEEN RAISED BY THE REVENUE IN ITS APPEAL:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DELETING THE ADDITION TO GROSS PROFIT OF RS.9 59 55 4/-. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRECTING THE A.O. TO ALLOW ADDITIONAL LEASE RENT O F RS.30 LAKHS IN THE YEAR OF SETTLEMENT OR PAYMENT. 2. AT THE OUTSET FROM THE SIDE OF THE OPPONENT-AS SESSEE A DECISION OF THIS TRIBUNAL IN THE CASE OF ACIT VS. M/S.SAMIR DIA MONDS MFG. PVT.LTD. ITA NO.4219/AHD /2007 ITO VS. HIMANSHU SILK MILLS PVT.LTD. ASST.YEAR - 2003-04 - 2 - BEARING ITA NO.1733/AHD/2005 FOR ASSESSMENT YEAR 20 02-2003 DATED 21/08/2009 WAS FURNISHED BY RAISING A PRELIMINARY O BJECTION THAT THE REVENUES APPEAL DESERVES TO BE DISMISSED BECAUSE T HE TAX EFFECT THEREIN WAS LESS THAN THE PRESCRIBED LIMIT. FOLLOWING A D ECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. MANGLAM RI CINUS LTD. REPORTED AS (2008) 174 TAXMAN 186 IT WAS HELD THAT THE REV ENUES APPEAL WAS NOT MAINTAINABLE. 3. FROM THE SIDE OF THE REVENUE LEARNED DEPARTMENT AL REPRESENTATIVE HAS STATED THAT THOUGH THE ASSESSEE HAS DECLARED A LOSS AND THE ASSESSMENT HAS ALSO BEEN FINALIZED AT NIL INCOM E BUT THE QUESTION OF ADDITION OF GROSS PROFIT OF RS.9 59 554/- MIGHT HAV E THE EFFECT OF THE TAX MORE THAN THE PRESCRIBED LIMIT THEREFORE THIS APP EAL CAN INDEPENDENTLY BE ADJUDICATED UPON. ALTERNATIVELY HE HAS ALSO C ONTESTED THAT THE QUESTION OF NIL ASSESSMENT WHERE ADMITTEDLY NO TAX LIABILITY HAS BEEN IMPOSED BY THE ASSESSING OFFICER ARE SUBJECT TO CON TROVERSY THAT WHETHER IN THOSE CASES WHERE THE ADDITION INVOLVED IS SUBST ANTIAL; WHETHER CAN BE SAID TO BE COVERED BY THE CBDT CIRCULARS. 4. ON HEARING BOTH THE SIDES WE ARE OF THE VIEW TH AT THE QUESTION OF APPLICABILITY OF CBDT CIRCULAR NOW STOOD SET AT RES T AS FAR AS THIS FORUM IS CONCERNED. THEREFORE FOLLOWING THE ABOVE REFERR ED DECISIONS AND THE DECISION OF THE DELHI HIGH COURT WE ARE LEFT WITH NO OPTION BUT TO DISMISS THIS APPEAL OF THE REVENUE IN LIMINE BEING NOT MAINTAINABLE. HOWEVER REVENUE IS ALWAYS AT LIBERTY TO MOVE A MIS CELLANEOUS PETITION ITA NO.4219/AHD /2007 ITO VS. HIMANSHU SILK MILLS PVT.LTD. ASST.YEAR - 2003-04 - 3 - AT ANY TIME IN FUTURE IF THE AFORESAID DECISION I S REVERSED OR ANY OTHER VIEW IS EXPRESSED BY A HIGHER JUDICIAL AUTHORITY. 5. WITH THESE REMARKS REVENUES APPEAL IS HEREBY D ISMISSED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 14/05/2010. SD/- SD/- ( D.C. AGRAWAL) ( MUKUL SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 14/ 05 /2010 T.C. NAIR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VIII AHMEDABAD 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD