ASSISTANT COMMISSIONER OF INCOME TAX, PUNE V. DR. RAJIV MARUTI RAUT, PUNE

MA 276/PUN/2022

AI Insights

The case involves the Assistant Commissioner of Income Tax, Circle-11, Pune (Applicant) vs. Dr. Rajiv M. Raut (Respondent), concerning the assessment year 2009-2010. The Revenue filed a miscellaneous application under section 254(2) of the Income Tax Act, 1961, seeking to recall the Tribunal's earlier order that dismissed their appeal regarding the assessment of Dr. Raut's income. The original dispute centered on the treatment of a capital receipt as a revenue receipt, leading to an additional tax assessment. The CIT(A)-1, Pune had earlier granted relief to Dr. Raut, which was contested by the Revenue. The Tribunal's initial dismissal of the appeal was based on the monetary limit of the tax effect, as per CBDT Circular 03/2018. However, upon reconsideration, it was determined that the case met the exception criteria of the circular, specifically concerning revenue audit objections, leading to the recall of the dismissal order.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 471131 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 8 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-10-2024
• Appeal Filed By: Department
• Order Result: Allowed
• Next Hearing Date: 16-08-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 31-01-2019
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AKHILESH SRIVASTAVA
• Assessee Lawyers: SHWETA JOSHI
• Keywords: Tax effect; Capital receipt; Audit objection
• Section: 143(3); 263; 254(2)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL PUNE “A” BENCH : PUNE BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI G D PADMAHSHALI , ACCOUNTANT MEMBER M.A.No.276/PUN./2022 Arising out of I.T.A.No.453/PUN./2017 - Assessment Year 2009-2010 The Assistant Commissioner of Income Tax, Circle-11, Pune. vs., Dr. Rajiv M. Raut, 46, Hermes Heritage Co-op Society, Nagar Road, Pune. PIN-411001 PAN AAZPR8018G (Applicant) (Respondent) For Revenue : Shri Akhilesh Srivastava For Assessee : CA Shweta Joshi Date of Hearing : 06.09.2024 Date of Pronouncement : 15.10.2024 ORDER PER SATBEER SINGH GODARA, J.M. : This Revenue’s miscellaneous application M.A.No.276/PUN./2022 filed u/s.254(2) of the of the Income Tax Act, 1961 (in short \"the Act\"), seeks to recall/rectify our order dated 27.07.2018 dismissing it’s corresponding main appeal ITA.No.453/PUN./2017 for assessment year 2009- 2010. Heard both the parties at length. Case file perused. 2. The Revenue pleads the following in it’s instant miscellaneous application : 2 M.A.No.276 /PUN./2022 The assessee is an ophthalmologist and surgeon in the field of cataract and glaucoma. The return of income was e-filed by the assessee on 31/10/2009 declaring total income of Rs.33,34,460/-. The case was selected for scrutiny. Assessment order u/s. 143(3) of the Act, was passed in the case on 29/12/2011 determining total income at Rs.34,19,460/-. The revenue audit raised an objection and accordingly order u/s. 263 was passed 29/03/2014. Thereafter, the effect to order u/s. 263 was passed on 27/03/2015 by passing order u/s. 143(3) r.w.s 263 of the Act, 1961 determining total income at Rs.68,19,460/- wherein addition of Rs.34,00,000/- was made treating capital receipt as revenue receipt. Against this order, the assessee preferred appeal before CIT(A)-1, Pune. 2. The Hon'ble CIT(A)-1, Pune's appeal vide no.PN/CIT(A)-1/DCIT.Cir-11/PN/54/2015-16 dated 25/11/2016 allowed the assessee's ground of appeal and granted relief to the assessee of Rs.34,00,000/-. Against the order of the CIT(A)-1, Pune, the department file appeal before Hon'ble ITAT. 3. The Hon'ble ITAT, \"A\" Bench, Pune's order in ITA No. 453/PUN/2017 dated 27/07/2018 has decided the appeal dismissing the appeal of the Department. While 3 M.A.No.276 /PUN./2022 deciding the appeal, the Hon'ble ITAT has held that the tax effect in dispute in the said appeal is stated to be below monetary limit of Rs.20 Lakhs specified in CBDT Circular 03/2018 dated 11/07/2018. The Hon'ble ITAT further stated that revenue shall be liberty to approach the Tribunal for re-institution of appeals, if the requisite material is brought to show that appeals are protected by the exception prescribed in para 10 of the circular(supra). 4. In view of Para 10 of Circular No. 03/2018 issued by the CBDT on 11/07/2018 the four conditions are as under:- (a) Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to illegal or ultra vires, or (c) Where Revenue Audit Objection in the case has been accepted by the department, or (d) Where the addition relates to undisclosed foreign assets/bank accounts. 4.1. The present case falls under condition (c) of the exception of circular No. 03 of 2018 dated 11/07/2018. 4 M.A.No.276 /PUN./2022 5. In view of the above facts, this miscellaneous application is filed u/s 254(2) of the Income Tax Act, requesting the Humble I.T.A.T. to re-institute the appeal of the Department.” 3. Learned counsel representing the assessee is very fair at the outset in not disputing the Revenue’s foregoing pleadings that the tax effect herein is no more the decisive factor herein once the CBDT exception clause in para-10(C) involving an instance of revenue audit party’s objections; is indeed involved herein and therefore, our impugned order had wrongly rejected the corresponding main appeal ITA.No.453/ PUN./2017 on this limited issue. We appreciate the assessee’s fair stand and recall our impugned order dated 27.07.2018. The registry is directed to fix the main appeal ITA.No.453/ PUN./2017 for hearing as per rules. Ordered accordingly. 4. This Revenue’s miscellaneous application M.A.No.276/PUN./2022 is allowed in above terms. Order pronounced in the open Court on 15.10.2024. Sd/- Sd/- [GD PADMAHSHALI] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 15th October, 2024 VBP/- 5 M.A.No.276 /PUN./2022 Copy to 1. The appellant 2. The respondent 3. The Pr. CIT, Pune concerned. 4. The D.R. ITAT, Pune-A-Bench, Pune. 5. Guard File. //By Order// //True Copy // Sr. Private Secretary, ITAT, Pune Benches, Pune. "