ITO, Ward-4(1)(1), Ahmedabad v. M/s. Tirupati Paddy Products P. Ltd, Ahmedabad

MA 371/AHD/2019 | 2012-2013
Pronouncement Date: 05-03-2021 | Result: Dismissed

Appeal Details

RSA Number 37120524 RSA 2019
Assessee PAN AACCT2140B
Bench Ahmedabad
Appeal Number MA 371/AHD/2019
Duration Of Justice 1 year(s) 3 month(s) 1 day(s)
Appellant ITO, Ward-4(1)(1), Ahmedabad
Respondent M/s. Tirupati Paddy Products P. Ltd, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 05-03-2021
Appeal Filed By Department
Tags reg tax effect
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 05-03-2021
Assessment Year 2012-2013
Appeal Filed On 04-12-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV VICE PRESIDENT AND SHRI WASEEM AHMED ACCOUNTANT MEMBER MA NO.371/AHD/2019 AY 2012-13 (IN ITA NO. 118/AHD/2019 AY 2012-13) THE ITO WARD-4(1)(1) AHMEDABAD / VS. M/S.TIRUPATI PADDY PRODUCTS PVT.LTD. 243 NEW CLOTH MARKET OPP. RAIPUR GATE RAIPUR AHMEDABAD - 380 002 ./ ./PAN/GIR NO. : AACCT 2140 B ( /APPLICANT ) .. ( / RESPONDENT ) / APPLICANT BY : SHRI L.P. JAIN SR.DR / RESPONDENT BY: SHRI ASEEM THAKKAR AR / DATE OF HEARING 05/03/2021 / DATE OF PRONOUNCEMENT 5 /03/2021 / O R D E R PER WASEEM AHMED ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS APPLICATION THE REVENUE HAS REQUESTED FOR RECALLING OF THE COMMON ORDER DATED 26/07/2019 PASS ED BY THE ITAT AHMEDABAD BENCH D IN ITA NO.118/AHD/2019 FOR AY 2 012-13 DISMISSING APPEAL OF THE DEPARTMENT DUE TO LOW TAX EFFECT. 2. SHRI ASEEM THAKKAR AR APPEARED FOR THE ASSESS EE. THE LD. DR SHRI L.P. JAIN SR. DR APPEARED FOR THE DEPARTMENT. IT IS PLE ADED IN THE APPLICATION THAT THE REVENUE AUDIT OBJECTION WAS ACCEPTED BY THE DEP ARTMENT AND THEREAFTER ASSESSMENT ORDER U/S 143(3) OF THE IT ACT 1961 WAS MADE. FURTHER THE LD. CIT(A) VIDE NO. CIT(A)-8/10203/17-18 DATED 29/11/2 018 HAS DELETED THE M A NO. 37 1 /AHD/2019 (IN ITA NO.118/AHD/2019) ITO VS. TIRUPATI PADDY PRODUCTS PVT.LTD. ASST. YEAR - 2012-13 - 2 - ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CAPITAL SUBSIDY RECEIVED BY THE ASSESSEE FROM THE MOFPI. 3. DISSATISFIED WITH THE ORDER OF THE LD. CIT(A) THE REVENUE CAME UP IN APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE VIDE ORDER DATED 26/07/2019. THE TRIBUNAL WAS OF THE VIEW THAT TAX EFFECT INVOLVED IN THIS CASE WAS LESS THAN RS. 20 L AKHS ON ACCOUNT OF THE RELIEF GRANTED BY THE LD. CIT(A). THEREFORE IN VIEW OF TH E BOARD INSTRUCTION BEARING NO. 17 OF 2019 DATED 8/08/2019 SUCH APPEAL IS NOT M AINTAINABLE BEFORE THE TRIBUNAL. 4. IT HAS BEEN FURTHER PLEADED THAT INSTRUCTION NO. 3/2018 CONTAINS EXCEPTIONAL CLAUSE AT SL. NO. 10 OF THE INSTRUCTION WHICH IS ALSO APPLICABLE TO THE INSTRUCTION NO. 17 OF 2019. ACCORDING TO SUB-C LAUSE (C) OF CLAUSE 10 IF A REVENUE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DE PARTMENT THEN THE APPEALS ON SUCH ISSUES WOULD BE CONTESTED ON MERIT AND WILL NOT BE WITHDRAWN BY VIRTUE OF THESE INSTRUCTIONS. SINCE I T WAS A CASE REOPENED ON AUDIT OBJECTION THEREFORE IT FALLS WITHIN THE EXCE PTIONAL CLAUSE PROVIDED IN THE INSTRUCTION. IT IS ALSO PERTINENT TO NOTE THAT SUC H EXCEPTIONAL CLAUSE WAS ALSO THERE IN THE CBDT INSTRUCTION BEARING NO. 21 OF 201 5 DATED 10-12-2015. 5. HOWEVER DURING THE COURSE OF HEARING WE HAVE C ONFRONTED THE LD. DR WITH THE CBDT INSTRUCTION BEARING NO. 5/2017 DATED 23/01/2017 CLARIFYING THE EXCEPTIONAL CLAUSES. THESE INSTRUCTIONS PROVIDE THAT EVEN IF AN ASSESSMENT IS BEING REOPENED ON ACCOUNT OF AUDIT OB JECTION BUT THE ADDITIONS ARE DELETED BY THE CIT(A) ON MERIT THEN FOR THE PU RPOSE OF CHALLENGING THE ORDER OF CIT(A) IN FURTHER APPEAL THE CASE WOULD BE REQUIRED TO BE EXAMINED ON MERIT. SIMPLY THE APPEAL WOULD NOT BE FILED BEC AUSE THE CASE FALLS WITHIN THE EXCEPTIONAL CLAUSE OF THE CBDT INSTRUCTION FOR NOT FILING THE APPEAL WHERE M A NO. 37 1 /AHD/2019 (IN ITA NO.118/AHD/2019) ITO VS. TIRUPATI PADDY PRODUCTS PVT.LTD. ASST. YEAR - 2012-13 - 3 - THE TAX EFFECT BY VIRTUE OF RELIEF GRANTED BY THE C IT(A) IS LESS THAN THE MONETARY LIMIT FOR FILING SUCH APPEALS. IN OTHER W ORDS THE DEPARTMENT HAS TO ASSESS THE MERITS OF THE DISPUTE INVOLVED AND IT WI LL NOT FILE FURTHER APPEAL AGAINST THE ORDER OF THE CIT(A) OR ITAT IN A MECHAN ICAL MANNER. THE RELEVANT PARA-3 OF CIRCULAR NO. 5 OF 2017 READS AS UNDER:- 3. HOWEVER IT HAS BEEN NOTICED THAT PARA 8(C) OF CIRCULAR NO.21/2015 REGARDING CASES WHERE ADDITION MADE ON ACCOUNT OF REVENUE AUD IT OBJECTION IS DELETED IS BEING ERRONEOUSLY INTERPRETED AND APPEALS ARE BEING MECHANICALLY FILED BY THE DEPARTMENT WITHOUT PROPER EXAMINATION OF THE CASE O N MERITS. THIS IS CONTRARY TO THE INSTRUCTIONS CONTAINED IN CIRCULAR NO.21/2015 A ND CIRCULAR NO.8/2016. IT IS THEREFORE CLARIFIED THAT THE IMPORT AND INTENT OF PARA 8 OF THE CIRCULAR NO.21/2015 IS THAT EVEN ON ISSUES MENTIONED IN THE SAID PARA APP EALS AGAINST THE ADVERSE JUDGMENT SHOULD ONLY BE FILED ON MERITS. 5.1. WE HAVE ALSO CONFRONTED WITH THE LD. DR WITH T HE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF PR. CIT VS. NAWANY CONSTRUCTION CO. (P.) LTD. REPORTED IN 98 TAXMANN.COM 294 (BOMBAY). 5.2. THE HONBLE BOMBAY HIGH COURT HAS CONSIDERED T HIS CIRCULAR AND OBSERVED THAT MERE RAISING OF THIS AUDIT OBJECTION IS NOT SUFFICIENT FOR RECALL OF THE ORDER. THE RELEVANT PART OF THE DISCUSSION OF THE HONBLE BOMBAY HIGH COURT HAS HELD AS UNDER: 8. IT IS CONCEDED THAT WHILE SEEKING TO RESTORE I NCOME TAX APPEAL NO.254 OF 2013 ON THE FILE OF THIS COURT NEITHER THE REVENUES CI RCULAR DATED 11-7-2018 IS REFERRED NOR ANY CONDITION THEREIN. IF THE CONDITION NOW RE LIED UPON IS WITH REGARD TO THE REVENUE AUDIT OBJECTION THEN MERE RAISING OF THIS OBJECTION IN TERMS OF THIS CIRCULAR IS NOT ENOUGH. THE REVENUE WILL HAVE TO POINT OUT THAT THIS AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT. WE HAVE NO SUCH RECORD BEFORE US. 9. IN THE CIRCUMSTANCES WE FIND THAT THIS IS AN A TTEMPT TO GET OVER THE BINDING CIRCULARS AND IN ANY CASE WE SHALL NOT ALLOW THE RE VENUE TO GET OVER THEM IN THIS MANNER. THE CIRCULARS CONTINUE TO BIND THE REVENUE AND IF THEY CONTAIN ANY CONDITIONS WHETHER SUCH CONDITIONS ARE ATTRACTED O R NOT WOULD HAVE TO BE PROVED AND ESTABLISHED BY THE REVENUE. ONCE THERE IS NO S UCH RECORD BEFORE US WE DO NOT COUNTENANCE THE ORAL REQUEST OF MR. PINTO. CONSEQU ENTLY WE DO NOT SEE ANY REASON TO ENTERTAIN THIS APPEAL. IT IS DISMISSED. 6. THE LD. DR WAS UNABLE TO CONTROVERT THE ABOVE PO SITION. M A NO. 37 1 /AHD/2019 (IN ITA NO.118/AHD/2019) ITO VS. TIRUPATI PADDY PRODUCTS PVT.LTD. ASST. YEAR - 2012-13 - 4 - 7. ON DUE CONSIDERATION OF ALL THESE FACTS AND CIRC ULAR OF THE BOARD I.E. CIRCULAR NO. 5 OF 2017 IN THE LIGHT OF HONBLE BOMB AY HIGH COURT DECISION WE ARE OF THE VIEW THAT DEPARTMENT HAS NOT BROUGHT ANY SUBSTANTIAL MATERIAL ON THE RECORD POINTING OUT THAT APPEAL WAS FILED AFTER EVALUATION OF MERIT ON THE ISSUES INVOLVED. IT SOUGHT TO RECALL THE ORDER OF THE TRIBUNAL MERELY ON THE BASIS OF AUDIT OBJECTION WHICH IS NOT SUFFICIENT F OR RECALLING THE TRIBUNAL ORDER. THEREFORE WE DO NOT FIND ANY ERROR IN THE ORDER OF THE TRIBUNAL. THUS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS REJECTED. 8. IN THE RESULT MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 5/03/2021 SD/- SD/- ( RAJPAL YADAV ) ( WASEEM AHMED ) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD; DATED 5 /03/2021 # . . . $ . . / T.C. NAIR SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT 2. / THE RESPONDENT. 3. %&' ( / CONCERNED CIT 4. ( ( ) / THE CIT(A)-8 AHMEDABAD 5. )*+ $$&' &' % / DR ITAT AHMEDABAD 6. +./ / GUARD FILE. / BY ORDER ) $ //TRUE COPY// / (DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD