ACIT, CENTRAL CIRCLE, 4(3), KOLKATA, KOLKATA V. JIVENDRA MISHRA, KOLKATA

MA 35/KOL/2025

AI Insights

This case involves a Miscellaneous Application (M.A. No.: 35/KOL/2025) arising from a previous order in ITA No. 1108/KOL/2024 concerning the assessment year 2016-17. The application was filed by the ACIT, Central Circle-4(3), Kolkata against Jivendra Mishra, challenging the relief granted by the CIT(A)-27, Kolkata, which allowed relief of Rs. 23,05,300 on account of commission income from accommodation entries. The Revenue argued that the case falls under an exceptional clause of the CBDT Circular, which exempts it from the monetary limit for filing appeals. The Tribunal agreed, noting that the previous decision did not consider these exceptions, and thus recalled the order for a fresh decision on merits.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 708842 (ITAT-KOLKATA)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-07-2025
• Appeal Filed By: Department
• Order Result: Allowed
• Assessment Year: 2016-2017
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence; Tax effect; Accommodation entries

Judgement Text

"आयकर अपीलीय अधिकरण कोलकाता 'बी' पीठ, कोलकाता में IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘B’ BENCH, KOLKATA श्री प्रदीप क ुमार चौबे, न्याधयक सदस्य एवं श्री राक ेश धमश्रा, लेखा सदस्य क े समक्ष Before SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER & SHRI RAKESH MISHRA, ACCOUNTANT MEMBER M.A. No.: 35/KOL/2025 Arising out of I.T.A. No.: 1108/KOL/2024 Assessment Year: 2016-17 ACIT, Central Circle-4(3), Kolkata Vs. Jivendra Mishra (Appellant) (Respondent) PAN: AEXPM8503K Appearances: Department represented by : S.B. Chakraborthy, Addl. CIT, Sr. DR. Assessee represented by : Akkal Dudhwewala, AR. Date of concluding the hearing : 20-June-2025 Date of pronouncing the order : 16-July-2025 ORDER PER RAKESH MISHRA, ACCOUNTANT MEMBER: This Miscellaneous Application arises out of the order in ITA No. 1108/KOL/2024 for AY 2016-17 order dated 19.11.2024 passed by the SMC, Kolkata Bench. An application has been filed on 15.04.2025 requesting to recall the order u/s 254(2) of the Act and to revisit the decision thereof. It was stated that in para no. 4 of the order the SMC Page | 2 M.A. No.: 35/KOL/2025 AOO I.T.A. No.: 1108/KOL/2024 Assessment Year: 2016-17 Jivendra Mishra. Bench, Kolkata had granted liberty to file a Miscellaneous Application for revival of the appeal in case the appeal falls in any of the exceptions provided in the instruction of the CBDT and since the case falls within the exceptional clause (h) of para 3.1 of CBDT’s Circular No. 5/2024 dated 15.03.2024, the Miscellaneous Application is filed on the following grounds: “1. That on the facts and in circumstances of the case, the Ld. CIT(A)-27, Kolkata has erred in allowing relief to the assessee of Rs. 23,05,300/- on account of addition of Commission Income earned by way of providing accommodation entries without appreciating the material brought on record and facts evaluated by the AO in the assessment order. 2. That the instant case falls under exceptional clause (h) of para no. 3.1 of the CBDT's Circular No. 5/2024, dated 15.03.2024 vide F.No.279/Misc. 142/2007-ITJ(P.) i.e. case of accommodation entries and therefore, the monetary limit for filing appeals by the Revenue before the Tribunal does not apply in this case. 3. That the Department craves leave to add, modify or alter any of the ground(s) of appeal and/or adduce additional evidence at any time during the appeal proceedings.” 2. The assessee had also filed the statement of facts in the course of the appeal in which it is mentioned that the commission income was in respect of accommodation entry. Our attention was drawn to the assessment order para 3.1 onwards and also to the relevant para of the Ld. CIT(A)’s order. It is stated that in the statement given by the assessee u/s 132(4) of the Act he has admitted to provide accommodation entry to M/s. Saumya Mining Pvt. Ltd. for ₹12.44 Crore, against which he had offered commission at the rate of 0.2% which worked out to a lumpsum figure of ₹60 Lakh and was spread over three financial years i.e. FY 2013-14 to FY 2015-16. Further, the Ld. CIT(A) had noted that the investigating authorities had not identified any other groups or beneficiaries to whom accommodation entries had been provided or that Page | 3 M.A. No.: 35/KOL/2025 AOO I.T.A. No.: 1108/KOL/2024 Assessment Year: 2016-17 Jivendra Mishra. the appellant had admitted to earning any further commission income, apart from the foregoing sum of ₹60 Lakh. Hence, considering the statement on a standalone basis, it was noted that the assessee had honoured the disclosure given in his statement, the addition was deleted. Since the commission had been earned by way of accommodation entries, therefore, it is requested that the order dated 19.11.2024 may be recalled u/s 254(2) of the Act and the decision may be revisited and recalled as the case is falling within the exceptional clause (h) of para 3.1 of CBDT Circular No. 5/2024 dated 15.03.2024. 3. We have considered the submissions made. The order dated 19.11.2024 passed by the SMC Bench, ITAT, Kolkata was decided only on the ground of low tax effect without considering that the case falls under any of the exceptions. Since the case of an exception has been made out and the appeal falls under clause (h) of para 3.1 of the CBDT Circular No. 5/2024 dated 15.03.2024, the Miscellaneous Application is allowed and the order dated 19.11.2024 is hereby recalled to be decided afresh on merit. The Registry is directed to refix the case for hearing before the regular Bench. 4. In the result, the Miscellaneous Application filed by the Revenue is allowed. Order pronounced in the open Court on 16th July, 2025. Sd/- Sd/- [Pradip Kumar Choubey] [Rakesh Mishra] Judicial Member Accountant Member Dated: 16.07.2025 Bidhan (Sr. P.S.) Page | 4 M.A. No.: 35/KOL/2025 AOO I.T.A. No.: 1108/KOL/2024 Assessment Year: 2016-17 Jivendra Mishra. Copy of the order forwarded to: 1. ACIT, Central Circle-4(3), Kolkata. 2. Jivendra Mishra, 202/A. Block- B, Bangur Avenue, Kolkata, West Bengal, 700055. 3. CIT(A)- 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata "