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Arvind V. Joshi & Co, Gandhidham v/s The Dy Commissioner of Income

    IT(ss)A No. 127/Ahd of 2016 - AY 2011-12 & Cross Objection No. 100/Ahd of 2016

    Decided On, 23 October 2018

    At, Income Tax Appellate Tribunal Ahmedabad


    For the Appellant: Lalit P.Jain, Sr.DR. For the Respondent: K.C. Thaker, AR.

Judgment Text

Madhumita Roy, JM:

1. The instant appeal has been filed by the Revenue before us against the order dated 28.12.2015 passed by the Commissioner of Income Tax(Appeals)-12, Ahmedabad [Ld.CIT(A) in short] for Assessment Year (AY) 2011-12 and the assessee filed Cross Objection thereon.

2. The Revenue has raised the following grounds of appeal:


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. On the facts and in the circumstances of the case and in law, the Ld. CIT(A)has erred in law and/or on facts in deleting the addition of Rs.13,05,908/- on account of interest payment u/s.36(1)(iii).

2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and/or on facts in deleting the addition of Rs.31,82,203/- on account of Repairs & Maintenance.

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 13.12.2016. 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 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.

6. Assessee's Cross Objection No.100/Ahd/2016 for AY 2011-12 (arising out of IT(ss)A No.127/Ahd/2016) for AY 2011-12 - Revenue's appeal).

7. The Ld.AR for the assessee Shri K.C. Thaker seeks permission vide his oral representation at the time of hearing to withdraw the captioned Cross Objection of the assessee filed in the Revenue's appeal(supra) on the ground that Revenue's appeal stands dismissed owing to low tax effect. The Ld.DR for the Revenue does not raise any objection. Accordingly, the prayer for withdrawal of the Cross Objection filed by the assessee stands accepted. Thus, we dismiss the Cross Objection of the assessee as having been 'withdrawn'.

8. In the result, Revenue's appeal is dismissed and Assessee's cross objection is dismissed as withdrawn.


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