The DCIT, Central Circle-1,, Baroda v. M/s. Jayraj Estate Pvt.Ltd.,, Baroda

MA 362/AHD/2009 | misc
Pronouncement Date: 22-01-2010 | Result: Dismissed

Appeal Details

RSA Number 36220524 RSA 2009
Bench Ahmedabad
Appeal Number MA 362/AHD/2009
Duration Of Justice 2 month(s) 30 day(s)
Appellant The DCIT, Central Circle-1,, Baroda
Respondent M/s. Jayraj Estate Pvt.Ltd.,, Baroda
Appeal Type Miscellaneous Application
Pronouncement Date 22-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 22-01-2010
Assessment Year misc
Appeal Filed On 23-10-2009
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI MAHAVIR SINGH JM AND D.C.AGRAWAL AM DY. CIT CEN.CIR.1 BARODA. V/S . M/S ANJALI CONSTRUCTION ASHWAMEGH-II SAMRAJYA COMPLEX AKOTA MUNJMAHDA ROAD AKOTA VADODARA. PAN NO. (APPELLANT) .. (RESPONDENT) DY CIT CEN. CIR.1 BARODA V/S . M/S JAYRAJ ESTATE (P) LTD. ASHWAMEGH-II SAMRAJYA COMPLEX AKOTA MUNJMAHDA ROAD AKOTA VADODARA. PAN NO. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI C. K. MISHRA SR. DR RESPONDENT BY:- SHRI P. M. MEHTA AR M.A.NOS.361/AHD/2009 ARISING OUT OF IT(SS)A NO. 77/AHD/2005 BLOCK PERIOD 01.04.1995 TO 19.12.2001 M.A.NO. 362/AHD/2009 ARISING OUT OF IT(SS)A NO. 78/AHD/2005 BLOCK PERIOD 01.04.1995 TO 19.12.2001 M.A.NOS.361 & 362/AHD/2009 2 O R D E R PER D.C.AGRAWAL ACCOUNTANT MEMBER . IN THIS CASE APPEALS OF THE REVENUE WERE DISMISSED BY THE TRIBUNAL VIDE ITS COMMON ORDER DATED 19.05.2005 ON THE GROUND THA T CIRCULAR OF CBDT DIRECTED OFFICERS OF THE DEPARTMENT NOT TO FILE THE APPEAL WHERE REVENUE EFFECT IS LOW. THE TRIBUNAL HAD RELIED ON INSTRUCTI ON NO.1903 DATED 28 TH OCTOBER 1992 AND INSTRUCTION NO.1979 DATED 27 TH MARCH 2000 WHICH DIRECTED THE REVENUE NOT TO FILE THE APPEAL TO ITAT WHERE THE TAX EFFECT IS BELOW RS.1 LAKH. THIS LIMIT IS NOW INCREASED TO RS. 2 LAKHS. THE REVENUE HAS NOW FILED M.A. ON THE GROUND THAT LIMIT FOR CON SIDERING REVENUE EFFECT FOR FILING THE APPEAL WOULD INCLUDE SURCHARG E ALSO. 2. WE HAVE HEARD THE LD. DR AND THE LD. AR. 3. IN THIS CASE DCIT CEN.CIR.1 BARODA HAD PASSED AN ORDER UNDER SECTION 154 OF THE IT ACT 1961 ON 25.8.2004 FOR TH E BLOCK PERIOD 1.4.95 TO 19.12.2001. IN THIS ORDER OF LD. DCIT HE HAD REJ ECTED THE APPLICATION OF THE ASSESSEE WHEREIN ASSESSEE HAD REQUESTED NOT TO LEVY SURCHARGE. ASSESSEE FILED AN APPEAL BEFORE LD. CIT(A) CHALLENG ING THE LEVY OF SURCHARGE AND REJECTING THE RECTIFICATION APPLICATI ON OF THE ASSESSEE. LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE INASMUCH AS HE DIRECTED THAT SINCE THE PROVISO TO SECTION 113 LEVYING SURCHARGE WAS INTRODUCED W.E.F. 1.6.2002 THEREFORE NO SURCHARGE COULD BE LEVIED AS SEARCH TOOK PLACE ON 10.02.2002. THUS ON THIS BASIS MAIN GROUND OF ASSES SEE WAS ALLOWED AND AO WAS DIRECTED TO DELETE THE SURCHARGE. AGAINST TH IS REVENUE HAD FILED THE APPEAL BEFORE THE TRIBUNAL WHEREIN IT WAS CHALL ENGED THAT ISSUE IS DEBATABLE AND CANNOT BE DECIDED UNDER SECTION 154. THE TRIBUNAL WHILE NOT ADMITTING THESE APPEALS HELD THAT REVENUE EFFE CT IS ONLY OF M.A.NOS.361 & 362/AHD/2009 3 RS.14 157/- IN THE CASE OF ANJALI CONSTRUCTION AND RS.34 308/- IN THE CASE OF JAYRAJ ESTATE (P) LTD. AND BEING BELOW RS.1 LAKH S BEING LIMIT PRESCRIBED BY THE CIRCULAR OF THE BOARD. 4. NOW IN THE MISCELLANEOUS APPLICATIONS THE REVE NUE CONTENDS THAT SURCHARGE IS LEVIABLE IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. SURESH N. GUPTA (2008) 297 ITR 322 (SC). IN OUR CONSIDERED VIEW REVENUE EFFECT WOULD STILL B E LESS THAN THE LIMIT PRESCRIBED BY THE CBDT IN THEIR CIRCULAR EVEN IF IT IS CONSIDERED THAT SUR- CHARGE IS STILL TO BE LEVIED IN VIEW OF THE DECISIO N OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. SURESH N. GUPTA (SUPRA ). THE TRIBUNAL HAD DECIDED THE COMPETENCE OF THE APPEAL AND NOT THE ME RIT OF THE CASE. FURTHER WE NOTICE THAT ORDER OF THE TRIBUNAL WAS PA SSED ON 19.05.2005 WHEREAS THE MISC. APPLICATIONS HAS BEEN FILED AS ON 23.10.2009. THE FILING OF THESE MISC. APPLICATIONS IS CERTAINLY BEY OND 4 YEARS AS THE ORDER OF THE TRIBUNAL WAS RECEIVED BY THE COMMISSIONER ON 21 ST JULY 2005. IN VIEW OF THIS MISC. APPLICATIONS FILED BY THE REVEN UE CANNOT BE ENTERTAINED. THESE ARE REJECTED BOTH ON THE GROUND OF LIMITATION AS WELL AS ON MERIT. SD/- SD/- (MAHAVIR SINGH) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD DATED : 22/1/2010 MAHATA/- ORDER PRONOUNCED IN OPEN COURT ON 22/1/2010 M.A.NOS.361 & 362/AHD/2009 4 COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD