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Income Tax Appellate Tribunal, “ SMC ” BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD & SHRI, MANISH BORAD
आदेश / O R D E R
PER 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, Ahmedabad dated 10/03/2016 pertaining to A.Y. 2009-10.
ITA No.1412/Ahd/2016 & CO-90/Ahd/2016 ITO vs. Shri. Paramjitsingh Chandrasinh Bhatia Asst.Year –2009-10 - 2 - 2. First we take up Department’s appeal in ITA No.1412/Ahd/2016 for Asst. Year 2009-10, on the following Grounds: (i) That the ld. CIT(A) has substantially erred in deleting the addition of Rs.1,01,167/- out of the total addition of Rs.5,23,913/-. (ii) That the ld. CIT(A) has substantially erred in directing the AO to delete the remaining addition subject to production of certificates from the payees that the amount has been taken into their income. (iii) That the ld. CIT(A) has substantially erred in taking the amendment made in the section 40(a)(ia) of the Act to have retrospective effect in spite of the fact that the Act clearly sys that the amendments is effective w.e.f. 01/04/2013.
On the fact and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the Assessing Officer to the extent mentioned above since the assessee has failed to disclose his true income/book profit. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored to the above extent. The appellant craves, to leave, to amend or alter any ground or add a new ground which may be necessary. 3. 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 learned Departmental Representative fairly admitted that the tax effect is less than the limit prescribed by the aforesaid CBDT Circular.
We have heard both the parties 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.
ITA No.1412/Ahd/2016 & CO-90/Ahd/2016 ITO vs. Shri. Paramjitsingh Chandrasinh Bhatia Asst.Year –2009-10 - 3 - 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 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 5. limine.
Now we take up the Assessee’s Cross Objection in CO No.90/Ahd/2016 (in ITA No.1412/Ahd/2016) for the A.Y.2009-10, on the following Grounds: That the ld. ITO has accepted the ld. CIT(A) order dated 10th March, (i). 2016 by deleting the addition of Rs.1,01,167/- out of total addition of Rs.5,23,913/- by issuing order giving effect dated 16/05/2016 and therefore ground no.1, 2 & 3 raised by the Income Tax Officer is void and bad in law. (ii). That the assessee is authorized by law to produce the certificate from the loaner as required u/s.40(a)(ia) of I.T. Act to avoid the addition of non-deduction of tax out of payment of interest. (iii). That the ld. Assessing Officer has not given sufficient time to produce the certificate u/s.40(a)(ia) of I.T. Act during the assessment. The
ITA No.1412/Ahd/2016 & CO-90/Ahd/2016 ITO vs. Shri. Paramjitsingh Chandrasinh Bhatia Asst.Year –2009-10 - 4 - assessee preferred appeal to CIT(A) and therefore, the ground raised by ITO is against IT Act & Law. (iv). The Provision of Section 40(a)(ia) is declatory and curative in nature and has retrospective effect from 01/04/2005 though the amendment is made w.e.f. 01/04/2013. (v). That the assessee should not be penalized purely on the technical grounds when the legal curative action is available.
So far connected appeal of Cross Objection in ITA No.1412/Ahd/2016 for Asst. Year 2009-10 has been dismissed because of tax effect against the revenue and in favour of the assessee, therefore, assessee does not want to press his CO. In the result, CO is also dismissed as not pressed.
In the result, department’s appeal in ITA No.1412/Ahd/2016 is dismissed and Assessee’s Cross Objection No.90/Ahd/2016 is also dismissed as not pressed. This Order pronounced in Open Court on 08/09/2017
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 ( MANISH BORAD ) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 08/09/2017 Priti Yadav, Sr. PS
ITA No.1412/Ahd/2016 & CO-90/Ahd/2016 ITO vs. Shri. Paramjitsingh Chandrasinh Bhatia Asst.Year –2009-10 - 5 -
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, 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 True Copy 1. Date of dictation 06/09/2017 (dictation-pad 1 pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …07/09/2017 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……. 7. Date on which the file goes to the Bench Clerk………………… 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………………