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08-01-2020, Ravjibhai Manibhai Patel, Section 268A, 132, 153C,Tribunal Ahmedabad

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8 months 2 weeks ago #11981 by amit
Section - 268A, 132, 153C, 50C, 2(14)(iii)
Order Date - 08-01-2020
Favouring - Revenue
Court - Tribunal Ahmedabad
Appellant - DCIT
Respondent - Ravjibhai Manibhai Patel
Justice - RAJPAL YADAV JM & AMARJIT SINGH AM
Citation - 120Taxpundit70
Appeal No. - IT(SS)A No. 132 /Ahd/2018
Asstt. Year - 2013-14

Order

PER : RAJPAL YADAV

The ld.CIT(A) has decided the appeals of Shri Ravjibhai Manilal Patel and Shri Tushar Ravjibhai Patel for the Asstt.Year 2013-14 vide separate orders dated 6.3.2018. Both these orders have been challenged by Revenue vide IT(SS)A.No.132/Ahd/2018 and 133/Ahd/2018. On receipt of notice, both the respondents have filed cross objection bearing no.111/Ahd/2019 and 112/Ahd/2019.

2. Appeals and the COs were listed for hearing on 3.10.2019 wherein it was pointed by the ld.counsel for the assessee that appeal in the case of Shri Tushar Ravjibhai Patel is not maintainable because tax effect by virtue of relief given by the ld.CIT(A) involved in this appeal is less than Rs.50 lakhs, and as far as CO filed by him was not pressed. Similarly, in the case of Shri Ravjibhai Manilal Patel, cross objection was not pressed by the assessee. All these appeals were heard and orders were reserved for pronouncements. However, on account of inadvertent mistake, appeal of Shri Ravjibhai Manilal Patel i.e. IT(SS)A.No.132/Ahd/2018 was treated as not maintainable on account of low tax effect, whereas tax effect involved in this appeal was more than the prescribed limit, and it was duly maintainable. On receipt of order in this appeal, the assessee has filed an application vide which they have pointed out error crept in order of the Tribunal dated 3.10.2019 vide which IT(SS)A.No.132/Ahd/2018 along with CO No.111/Ahd/2019 was allowed to be dismissed. On receipt of this application, the Tribunal has re-fixed all these appeals for hearing vide order dated 10.12.2019 observing as under:

“10.12.2019 IT(SS)A.No.132/Ahd/2018 is directed at the instance of the Revenue against the order of the ld.CIT(A) dated6.3.2018 in the case of Shri Ravjibhai M. Patel. On receipt of notice, the assessee has filed CO bearing No.111/Ahd/2019. Similarly, IT(SS)A.No.133/Ahd/2018 is directed at the instance of Revenue against the order of the ld.CIT(A) dated 6.3.2018 for the Asstt.Year 2013-13 in the case of Tushar Ravjibhai Patel. On receipt of notice, the assessee has filed CO bearing No.112/Ahd/2019. All these four appeals were heard together by the Tribunal on 3.10.2019.

2. The tax effect in the appeal of Shri Tushar Ravjibhai Patel was less than Rs.50 lakhs, and the ld.counsel for the assessee did not press the CO. Therefore, this appeal along with CO was to be dismissed on account of low tax effect involved in it. However, while drafting the order, an apparent typographical error was crept in the cause title of the order in the case of Ravjibhai M. Patel in IT(SS)A No.132/Ahd/2018 along with CO No.111/Ahd/2019 has been noted. This appeal along with CO has been dismissed on account of low tax effect in it. In fact the tax effect in this appeal is more than the monetary limit, and ought not to have been dismissed by applying CBDT Instruction No.17 of 2019. This fact has been brought to our notice by the ld.counsel for the assessee vide letter dated 22.10.2019. It has been prayed that corrigendum be issued whereby title in place of “Shri Ravjibhai Manibhai Patel”, Tushar Ravjibhai Patel be incorporated. Similarly, appeal number viz. IT(SS)A.No.132/Ahd/2018 has been sought to be replaced with IT(SS)A.No.133/Ahd/2018.

3. Registry has placed a record before us along with the application. We find that an apparent error has crept in. Appeal which has been dismissed on account of low tax effect ought not to have been dismissed, and deserves to be decided on merit. The appeal i.e. IT(SS)A.No.133/Ahd/2018 and CO No.112/Ahd/2019 pending adjudication on merit deserves to be dismissed on account of low tax effect. Considering this discrepancy, we deem it appropriate to issue notice to the Revenue and list all these appeals for clarification on 7th January, 2020. Registry is directed to inform both the parties, and supply copy of this order to both the parties, including the assessing officer.

3. After hearing the parties, and due consideration of the facts and circumstances, we are of the view that while disposing of the IT(SS)A.No.132/Ahd/2018 along with CO NO.111/Ahd/2019, the Tribunal has committed apparent error. It has disposed of the appeal by treating it as if tax effect involved in this appeal is less than Rs.50 laksh, whereas tax effect is more than Rs.50 lakhs. Therefore, we recall order of the Tribunal dated 3.10.2019 and restore this appeal as well as CO to their respective original numbers, and proceed to decide both these appeals as well as cross objection afresh.

4. IT(SS)A No.133/Ahd/2018 and CO No.112/Ahd/2019

5. In this appeal, Revenue is aggrieved by action of the ld.CIT(A) in deleting the addition of Rs.55.00 lakhs made on account of unexplained investment.

6. Admittedly, tax effect involved in this appeal is less than Rs.50 lakhs. Recently, CBDT Circular No.17 of 2019 dated 8.8.2019 has directed the Department not to file appeal before the Tribunal where tax effect is below Rs.50 lakhs. This instruction is applicable to the pending cases also. Therefore, the present appeal of the Revenue is liable to be dismissed at the threshold. The ld.DR did not dispute applicability of the recent CBDT circular and left to the Tribunal to pass appropriate order in the matter.

7. After hearing both the sides and after perusal of the above CBDT Instruction, we are of the view that the present appeal of the Revenue falls within the purview of the CBDT Instruction cited (supra). It is not disputed by the Revenue that tax effect on the total disputed addition is more than Rs.50 lakhs, and therefore, 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 dismissed.

8. However, it is observed that in case on re-verification at the end of the AO it can be demonstrated that the tax effect is more, or Revenue’s case falls

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