Income Tax Appellate Tribunal - Ahmedabad
The Jt. Commissioner Of Income ... vs Shri Anandkumar K. Bengani,, Vadodara on 16 October, 2019
आयकर अपील य अ धकरण, अहमदाबाद यायपीठ
IN THE INCOME TAX APPELLATE TRIBUNAL,
''A' 'BENCH, AHMEDABAD
BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER
AND
Ms MADHIMITA ROY, JUDICIAL MEMBER
M.A No.91/Ahd/2019
In
अपील सं./IT(SS)A. No.428/Ahd/2017
नधारण वष/Asstt. Year 2011-2012
J.C.I.T(OSD), Shri Anandkumar Bengani,
Central Circle-1, Vs A-23/24, Yogeshwar Society,
Baroda. Vibhag-Im behind JNK Apt.,
High tension road,
Subhanpura,
Baroda.
PAN : AFVPB6590G
(Applicant) (Respondent)
Revenue by : Shri L.P. Jain, Sr. D.R
Assessee by : None
सुन वाई क तार ख/ Da te of Hearing : 06/09/2019
घोषणा क तार ख / Date of Pro nouncement: 16/10/2019
आदेश /O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
By this Miscellaneous Applications, the Revenue seeks for recall of the consolidated order dated 27/07/2018 in ITA No. 428/AHD /2017 passed in group of cases as there is a mistake apparent from the record in the said order.
The contents of the miscellaneous application of the Revenue read as under:
M.A No.91/Ahd/2019In IT(SS)ANo.428/Ahd/2017 A.Y.2011-12.2
3. The decision of the Ld. CIT(A) was not acceptable and hence department filed further appeal before the Hon'ble ITAT vide IT(SS)A No. 428 & 429/Ahd/2017 on 06.12.2017 on merits as well as challenging the grounds mentioned in para
2.Further Vide CBDTs circular dated 11.07.2018, the Hon'ble ITAT dismissed Revenue's appeal involving tax effect of less than Rs. 20 lakhs as withdrawn taking into consideration that the instructions have been made applicable with retrospective effect and are applicable on pending appeals also. The merits of the case as well as the legal issue has not been taken into consideration. However, the Hon'ble ITAT has also given liberty that in the case on verification at the end of the A.O 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.
4. On verification of the case, it is observed that the Hon'ble ITAT has dismissed the department's appeal taking into consideration only the tax effect, which is below the limit.
Further, it must be mentioned that as per the website of Hon'ble Supreme Court of India, an SLP filed by the Department against the decision of Gujarat High Court in CIT vs. Saumya Construction Pvt. Ltd. has been 'disposed as dismissed' vide order dated 24.04.2018 of Hon'ble Supreme Court of India. In this regard, it is submitted that the SLP has been disposed as 'dismissed' by the Hon'ble Court. However, there is no speaking order as such as to why it has been dismissed. Also, there is no observation of the court with regard to interpretation and scope of section 153A of the Act. Therefore, the legal question regarding interpretation of scope of Section 153A of the Act is still open as the interpretation that additions made without any incriminating material in complete and unabated assessments are not stipulated under the section clearly limits Section 153A of the Act and gives it an interpretation not originally included in the provision when it was inserted.
Thus, though the aggregate tax effect involved of Rs.21,983/- is below the prescribed limit for filing further appeal and the issue involved also falls within the ambit of the exceptions 10(a) for filing further appeal as per Board's Instruction No. 3/2018 dated 11.07.2018, the undersigned pray your honour to restore the appeal IT(SS)A/428, 429/Ahd/2018 for A.Y. 2011-12 & 2012-13 and an intimation of having restored the appeal before the Hon'ble ITAT may kindly be sent to this office. It is also prayed that the Hon'ble ITAT may kindly pass an appropriate order on merits, as it may deem fit. It is also submitted that no miscellaneous application u/s 254(2) has been filed earlier in this case.
The appellant craves to add to, amend or alter the above grounds as ma) be deemed necessary.
2. In view of the above, the learned DR before us prayed to recall the order passed by the ITAT as discussed above.
M.A No.91/Ahd/2019In IT(SS)ANo.428/Ahd/2017 A.Y.2011-12.
33. On the other hand, the learned AR before us submitted tha t there is no mistake apparent f rom the record as alleged by the Revenue. The ld. AR vehemently supported the order the Tribunal.
4. We have heard the rival contentions of both the parties and perused the materia ls a vailable on record. The only grievanc e the Revenue is that the impugned case falls within the ambit of the exception specified in Para 10(a) of the circular issued by the CBDT Circular No. 3/2018 dated 11/07/2018.
4.1 However, we note that the ca se law re lied upon by the Revenue has reached to its finality by the order of the Hon'ble Supreme Court. This fact was also admitted by the Revenue in the miscellaneous application filed by it as discussed in the preceding paragraph.
4.2 Thus we are of the vie w that the impugned issue does not fall in the exception of the CBDT circular a s suggested by the Revenue i.e. "Where the Constitutional validity of the provisions of an Act or Rule is under challenge". Accordingly we hold that there is no mistake apparent from record as alleged by the Revenue. Hence, the miscellaneous application filed by the Revenue is dismissed.
5. In the result, the miscellaneous application filed by the Revenue is dismissed.
M.A No.91/Ahd/2019In IT(SS)ANo.428/Ahd/2017 A.Y.2011-12.
4Order pronounced in the Court on 16/10/2019 at Ahmedabad.
-Sd- -Sd-
(Ms MADHUMITA ROY) (WASEEM AHMED)
JUDICIAL MEMBER ACCOUNTANT MEMBER
(True Copy)
Ahmedabad; Dated 16/10/2019
Manish