THE ITO, WARD-1(4), AHMEDABAD vs. M/S. DIVYAM REAL ESTATE PVT.LTD., AHMEDABAD

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ITA 2255/AHD/2015Status: DisposedITAT Ahmedabad24 August 2018AY 2011-123 pages
AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that the appeal was not maintainable due to low tax effect, as per CBDT Circular No. 3/2018. The appeal was dismissed on this ground.

What were the facts?

The Revenue filed an appeal against the CIT(A)'s order deleting an addition and reclassifying income. The appeal was filed after a CBDT circular restricted appeals with a tax effect below Rs. 20 lakhs.

What were the issues?

The primary issue was the maintainability of the Revenue's appeal before the ITAT in light of the CBDT's monetary limit for filing appeals.

Which sections of the Income-tax Act were involved?

Section 268A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “A” BENCH, AHMEDABAD

Before: SHRI WASEEM AHMED&

For Appellant: Shri S.K. Dev, Sr.DR
For Respondent: Shri Aditi Sheth , AR
Hearing: 23/08/2018

PER Ms. MADHUMITA ROY - JM:

The instant appeal has been filed before us by the Revenue against the order dated 28.05.2015 passed by the Commissioner of Income Tax(Appeals)-6, Ahmedabad- [Ld.CIT(A) in short] for Assessment Year (AY) 2011-12. 2. The ground of appeal raised by the Revenue reads as under:- (1) The ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.25,62,261/- made on account of rejection of conversion of stock in trade into capital assets/investment and rejection of books of accounts.

(2) The ld. CIT(A) has erred in law and on facts in directing to treat the income of Rs.41,22,463/- as house property income as against the income from business treated by AO.

- 2 - ITA No.2255/Ahd/2011 DCIT vs. M/s. Divyam Real Estate Pvt.Ltd. Asst.Year – 2011-12

3.

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 Bench as to applicability and maintainability of the appeal filed by the Revenue in view of recent CBDT Circular No.3/2018 dated 11.7.2018 restricting the filling of the appeal by the Revenue where the tax effect is below Rs.20 lakhs, the ld.DR did not dispute the same and submitted that the issue is left to the Tribunal to be decided in accordance with law.

4.

We find that the appeal of the Revenue is presented on 30.07.2015. On 11.7.2018 the CBDT has issued Instructions bearing No. 3 of 2018 under file 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.20 lakhs. The instructions have been made applicable with retrospective effect, meaning thereby, these instructions 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 appeal is filed, is less than Rs.20 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 the 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 within 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

- 3 - ITA No.2255/Ahd/2011 DCIT vs. M/s. Divyam Real Estate Pvt.Ltd. Asst.Year – 2011-12

period prescribed in the Act. In view of the above, the appeal of the Revenue is dismissed due to low tax effect.

5.

In the result, the appeal of the Revenue is dismissed. This Order pronounced in Open Court on 24/ 08 /2018

Sd/- Sd/- ( WASEEM AHMED ) ( Ms. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER

Ahmedabad; Dated 24/ 08 /2018

ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-6, Ahmedabad �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation .. 23.8.18 2. Date on which the typed draft is placed before the Dictating Member …23.8.18 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…………….. 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S…….24.8.18 7. Date on which the file goes to the Bench Clerk…………………24.8.18 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………

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