IN INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH Before: Shri Amarjit Singh, Accountant Member And Smt. Madhumita Roy, Judicial Member M.A. Nos. 78 & 79/Ahd/2019 (in ITA Nos. 252 & 253/Ahd/2017) Assessment Year 2011-12 to 2012-13 Jt. CIT, Shri Mahendra R. Central Circle-1, Kankaria, B-404, Baroda Vs Vardhman Complex, (Appellant) Subhanpura Main Road, Subhanpura, Baroda PAN: ADWPK7648D (Respondent) Revenue by: Shri Lalit P. Jain, Sr. D.R. Assessee by: Shri Biran B. Shah, A.R. Date of hearing : 19-07-2019 Date of pronounce ment : 20-08-2019 ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- above two Misc. Applications are filed by Revenue seeking recall of Tribunal order dated 31.7.2018, vide which, Tribunal has dismissed bunch of appeals of Revenue in limine due to low tax effect by applying instructions of CBDT vide circular No.3 of 2018 dated 11.7.2018. In this group of appeals, above two appeals were also notified and accordingly dismissed by Tribunal due to non-maintainability. Revenue is now seeking recall of impugned order qua above two appeals. M.A. Nos. 78 & 79/Ahd/2019 A.Y. 2011-12 & 2012-13 Page No 2 Jt. CIT vs. Shri Mahendra R. Kankaria 2. While taking us through MAs., ld.DR submitted that pleadings made in these two MAs are similarly worded except quantum. Therefore, we take up submission made in MA No.78/Ahd/2019 for sake of convenience of adjudication. In this MA, it is pleaded by Revenue that impugned order of Tribunal is liable to be recalled in view of fact that issue involved in appeal falls within ambit of exceptions provided in clause 10(a) of CBDT Circular No.3 of 2018 dated 11.7.2018. relevant contentions of Revenue made in MA reads as under: 4. On verification of case, it is observed that Hon'ble ITAT has dismissed department's appeal taking into consideration only tax effect, which is below limit. Further, it must be mentioned that as per website of Hon'ble Supreme Court of India, SLP filed by Department against 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 SLP has been disposed as 'dismissed' by Hon'ble Court. However, there is no speaking order as such as to why it has been dismissed. Also, there is no observation of court with regard to interpretation and scope of section 153A of Act. Therefore, legal question regarding interpretation of scope of Section 153A of Act is still open as interpretation that additions made without any incriminating material in complete and unabated assessments are not stipulated under section clearly limits Section 153A of Act and gives it interpretation not originally included in provision when it was inserted. Thus, though aggregate tax effect involved of Rs.1,95,124/- is below prescribed limit for filing further appeal and issue involved also falls within ambit of exceptions 10(a) for filing further appeal as per Board's Instruction No. 3/2018 dated 11.07.2018, undersigned pray your honour to restore appeal IT(SS)A/247/Ahd/2017 for A.Y. 2010-11 and intimation of having restored appeal before Hon'ble ITAT may kindly be sent to this office. It is also prayed that Hon'ble ITAT may kindly pass 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. 3. We have heard both parties on issue of recall of impugned order as prayed by Revenue. We find that Tribunal has dismissed appeals of Revenue on ground that tax effect in that appeal is below Rs.20 lakhs, and therefore, same is not maintainable in view of recent CBDT circular No.3 of 2018. It is not disputed by Revenue that tax effect involved on disputed addition is less than Rs.20 lakhs, and Revenue in its own submission admitted that tax effect is Rs. 15,184/- for Asstt.Year 2011-12 and Rs. M.A. Nos. 78 & 79/Ahd/2019 A.Y. 2011-12 & 2012-13 Page No 3 Jt. CIT vs. Shri Mahendra R. Kankaria 7,89,960/- for for Asstt.Year 2012-13. However, case of Revenue is that its appeal falls within scope of exceptions provided in clause 10(a) of above circular, therefore, all two appeals have to be decided on merit even though tax effect involved therein is below taxable limit prescribed by CBDT for filing appeal before Tribunal. We find from CIT(A) s order that CIT(A) has allowed appeals of assessee while considering various case laws including decision in case of Saumya Construction 387 ITR 529 (Guj). Revenue in MA itself has contended that SLP against decision of Hon ble Gujarat High Court in case of Saumya Construction has been dismissed by Hon ble Supreme Court vide order dated 24.4.2018. There is nothing before us to show that constitutional validity of provisions of Act or Rule is under challenge on issue, as stipulated in 10(a) of above CBDT Circular. In our view, there is no justification or merit in plea of Revenue for recall of impugned order of Tribunal. MAs of Revenue being devoid of any merit, stand rejected. 4. In result, both Misc. Applications of Revenue are dismissed. Order pronounced in open court on 20-08-2019 Sd/- Sd/- (MADHUMITA ROY) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 20/08/2019 / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. M.A. Nos. 78 & 79/Ahd/2019 A.Y. 2011-12 & 2012-13 Page No 4 Jt. CIT vs. Shri Mahendra R. Kankaria By order Jt. CIT, Central Circle-1, Baroda v. Mahendra R. Kankaria