Income Tax Officer-2(5), Kanpur V. Shri Durga Prasad Rawat, Kanpur

ITA 129/LKW/2020

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 0678 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 09-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARISH GIDWANI
• Keywords: Earning of tax free income; Tax effect; Condonation of delay; Bogus
• Section: 5(2); 268A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “B”, LUCKNOW BEFORE SHRI A.D JAIN, VICE PRESIDENT AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA No. 129/Lkw/2020 Assessment Year 2015-16 Shri Durga Prasad Rawat, 117/N/49, Kakadeo, Kanpur (U.P.) PAN – ABQPR 3421B Vs. Income Tax Officer-2(5), Kanpur (Respondent) (Appellant) Application for disposal of appeal under VSVS Assessee by Shri Harish Gidwani, DR Revenue by 09/06/2022 Date of hearing 04/07/2022 Date of pronouncement O R D E R PER A.D. JAIN, V.P. : This is Revenue’s appeal against the order of the ld. CIT(A)-I, Kanpur, dated 26.11.2018 for Assessment Year 2015-16. 2. There is a delay of 366 days in filing of the appeal. The Revenue has filed an application dated 07.02.2020 for condonation of delay, which is reproduced as below: Sub.: Request For Condonation of delay in filing of appeal in the case of Shri Durga Prasad Rawat, 117/N/49, Kakadeo, Kanpur (PAN: ABQPR3421B) for A.Y. 2015-16 - Reg. Kindly refer to the above. In this connection, it is submitted that the order of Ld. Commissioner of Income Tax (Appeals)-I, Kanpur in the case of Shri Durga Prasad Rawat for A.Y. 2015-16 has been received in the o/o the Pr. Commissioner of Income Tax-1, Kanpur on 11.12.2018 and therefore, the limitation of filing of Departmental appeal before the Hon'ble ITAT 2 was on 07.02.2019. As the total tax effect involved in the case is Rs. 3,56,637/-, hence the second appeal before the Hon'ble ITAT, Lucknow was not recommended on the ground that the tax effect involved in the case is below the monetary limit prescribed by the Hon'ble CBDT, New Delhi vide instruction no. 03/2018 dated 11.07.2018, Later on, the CBDT, New Delhi vide circular no. 23 of 2019 dated 06.09.2019 and O.M. dated 16.09.2019 has decided that notwithstanding anything contained in any circular issued u/s 268A specifying monetary limits for filing of departmental appeals before Income Tax Appellate Tribunal (ITAT), High Courts and SLPs/Appeals before the Hon'ble Supreme Court, appeal may be filed on merits as an exception to said circular, where Board, by way of special order direct filing appeal on merit in cases involved in organized tax evasion activity. In the O.M. dated 16.09.2019 the following instruction has been given: "The undersigned is directed to refer to Circular No. 23 of 2019 dated 6th September, 2019 and to say that by virtue of powers of the Central Board of Direct Taxes u/s 268A of Income Tax Act, 1961, the monetary limits fixed for filing appeals before ITAT/HC and SLPs/ appeals before Supreme Court shall not apply in case of assesses claiming bogus LTCG/STCL through penny stocks and appeals/ SLPs in such cases shall be filed on merits," In this case, the prime issue is the sale of shares of a company which was later on established as a penny stock company by the Investigation Wing, Kolkata and also, as per the observation of the assessing officer in the assessment order, the sale of shares was found to be not a natural phenomenon but an arrangement of dubious design of providing accommodation entry of Long Term Capital Gain to introduce unaccounted own money as exempt income in the form of LTCG on sale of shares. Therefore, the matter falls under the purview of above circular. In view of the above, the delay caused in filing of appeal within the limitation period i.e. 07.02.2019, was beyond control of the undersigned. It is therefore requested to kindly condone the delay in filing of the appeal.” 3. Having carefully perused the application for condonation of delay, we find that there was sufficient cause for the delay in filing of the appeal. Accordingly, we condone the delay and admit this appeal for hearing. 4. None was present on behalf of the assessee. However, the assessee, Shri Durga Prasad Rawat has filed an application dated 15.05.2022, received in the Registry of this Office on 23.05.2022, vide which it has been submitted 3 that the Pr. Commissioner of Income Tax, Kanpur-I has issued a certificate in Form No.3 on 30.01.2021 under Vivad Se Vishwas Scheme and assessee has deposited the due amount. Therefore, the appeal filed by the Revenue may be dismissed as infructuous. 5. On behalf of the Revenue, the ld. DR has also filed Form No.5 on 06.06.2022. It is noticed that the order u/s. 5(2) r.w.s. 6 of the DTVSVA has been passed by the PCIT-1, Kanpur for full and final settlement of tax arrears. Since the assessee has opted for Vivad Se Viswas Scheme and tax payable on the Departmental appeal has been deposited and order for final settlement of tax arrears has been passed by the designated authority, therefore, the appeal filed by the Department is liable to be dismissed as withdrawn. Accordingly, since the order has been passed by PCIT-1, Kanpur for full and final settlement of tax arrears u/s. 5(2) r.w.s. 6 of DTVSVA, 2020 for AY 2015-16, the appeal of the Department is ordered to be dismissed as withdrawn. 6. In the result, the appeal of the Revenue is dismissed. (Order pronounced in the open court on 04/07/2022) Sd/- Sd/- (T.S. Kapoor) (A.D. Jain) Accountant Member Vice President Aks – Dtd. 04/07/2022 Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File Assistant Registrar