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Income Tax Appellate Tribunal, “ D ” BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD & SHRI, MANISH BORAD
आदेश / O R D E R
PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : This is an appeal filed by the Revenue along with Cross Objection filed by the Assessee against the order of Ld. CIT(A)-IV, Baroda dated 02/05/2014 pertaining to A.Y. 2007-08, on the following Grounds: i. On the facts and in the circumstance of the case and in law the ld. CIT(A) erred in holding that explanation below section 73 is
ITA No.2199/Ahd/2014 & CO No.258/Ahd/2014(in ITA No.2199/Ahd/2014) Margen Impex Ltd. Asst.Year –2007-08 - 2 - not applicable to the case of the assessee without appreciating the fact that the assessee had frequently dealt in purchase and sale of shares which is clearly evident from the statement of Capital Gain/loss submitted by the assessee itself. ii. On the facts and in the circumstances of the case and in law the ld. CIT(A) erred in directing the AO to assess the income as Short Term Capital Gain only and not as income from speculation business without appreciating the fact that the activities of the assessee involving purchase and sale of equity shares was deemed to be in the nature of carrying business in shares and securities in view of Explanation below section 73 of the act.
At the outset, the ld. Counsel for the assessee submitted that the appeal of the Revenue needs to be dismissed on account of low tax effect in view of the CBDT Circular No.21 of 2015 dated 10.12.2015. The ld. Departmental Representative fairly admitted that the tax effect is less than the limit prescribed by the aforesaid CBDT Circular.
We have heard ld. Counsel of the assessee and perused the material available on record. We find that prima-facie this appeal of the Revenue is not maintainable in view of CBDT Circular No. 21/2015 in F.No.279/Misc. 142/2007-ITJ (Pt) dated 10th December 2015, vide which it has been provided that if the tax effect by virtue of the Commissioner of Income-tax (Appeals)’s order is below Rs. 10 lacs, then that order would not be challenged before the Tribunal in further appeal. The Board has provided exemptions at clause (8) of the Instructions
ITA No.2199/Ahd/2014 & CO No.258/Ahd/2014(in ITA No.2199/Ahd/2014) Margen Impex Ltd. Asst.Year –2007-08 - 3 - wherein it has been provided that these instructions will not be applicable, if vires of any provisions has been quashed by impugned order or addition was made on some audit objections or the addition relates to undisclosed foreign assets/bank accounts, etc. We find that the present case does not fall within the exemption clause and the tax is less than Rs.10 lacs. Therefore, the present appeal is not maintainable and hence dismissed.
In the result, the appeal filed by the Revenue is dismissed in limine.
So far CO is concerned. Assessee has taken following Grounds: i. The ld. CIT(A) has grievously erred in law or in facts in upholding the validity of reopening u/s.147 the concluded asst. u/s.143(3) after making inquiry. ii. That in the facts and circumstances of the case s well as in law, the ld. CIT(A) ought not to have confirmed the validity of notice issued u/s.148 on 28.06.2011 for reopening u/s.147 the concluded asst. u/s.143(3). The ld. CIT(A) ought to have held that notice u/s.148 and proceedings initiated u/s.147 were bad in law and contrary to the procedure laid down under judicial pronouncements. It should therefore be quashed.
Since connected department’s appeal has been dismissed on account of low tax effect. Therefore, CO has become infructuous and same is dismissed as infructuous.
ITA No.2199/Ahd/2014 & CO No.258/Ahd/2014(in ITA No.2199/Ahd/2014) Margen Impex Ltd. Asst.Year –2007-08 - 4 - 7. In the result, appeal filed by the department in ITA No.2199/Ahd/2014 for Asst. Year 2007-08 is dismissed and Cross Objection No.258/Ahd/2014 (in ITA No.2199/Ahd/2014) for Asst. Year 2007-08 is also dismissed as infructuous.
This Order pronounced in Open Court on 17/11/2017
Sd/- Sd/- Ekuh’k cksjM Ekuh’k cksjM Ekuh’k cksjM Ekuh’k cksjM egkohj izlkn egkohj izlkn egkohj izlkn egkohj izlkn ¼ys[kk lnL;½ ¼U;kf;d lnL;½ ¼ys[kk lnL;½ ¼U;kf;d lnL;½ ¼ys[kk lnL;½ ¼U;kf;d lnL;½ ¼ys[kk lnL;½ ¼U;kf;d lnL;½ (MAHAVIR PRASAD) ( MANISH BORAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 17/11/2017 Priti Yadav, 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)-IV, Baroda. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, True copy उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad