Income-tax Officer, Ward - 6(4), Pune V. Yusuf Gulammohmmed Patel, Pune

ITA 1861/PUN/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7256 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Tax effect
• Section: 271(1)(c); 143(3); 142(1); 143(1); 148

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1861/PUN/2018 / ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, WARD 6(4), PUNE. . / APPELLANT. V/S YUSUF GULAMMOHMMED PATEL, FLAT NO.12, MADANI SOCIETY, 30, GHORPADE PETH, PUNE 411 042. PAN : ANZPB4042M. . / RESPONDENT ASSESSEE BY : NONE. REVENUE BY : SHRI M.K. VERMA. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 4, PUNE DT.02.08.2018 FOR T HE ASSESSMENT YEAR 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED IN THE B USINESS OF M.S. PLATE AND PROFILE CUTTING. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2009-10 ON 30.09.2009 DECLARING TOTAL INCOME AT RS.4,12,41 0/-. THE RETURN WAS DULY PROCESSED U/S 143(1) OF THE ACT. ON RECEIPT OF IN FORMATION FROM THE OFFICE OF DIRECTOR GENERAL (INV.,) PUNE REGARDING HAW ALA TRANSACTIONS AMOUNTING TO RS.27,42,943/- FOR A.Y. 2009-10 W HEREIN THE / DATE OF HEARING : 15.07.2019 / DATE OF PRONOUNCEMENT: 24.07.2019 2 ASSESSEE WAS ONE OF THE BENEFICIARIES, WHO AVAILED ACCOMMO DATION ENTRIES FROM RASHMI ENTERPRISES, NOTICE U/S 148 OF THE ACT WAS ISS UED. SUBSEQUENTLY, NOTICE U/S 142(1) OF THE ACT DT.19.12.2014 ALONG WITH QUESTIONNAIRE WAS ISSUED. THEREAFTER, THE CASE WAS TAK EN UP FOR SCRUTINY AND ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 147 OF THE ACT VIDE ORDER DT.25.03.2015 AND THE TOTAL INCOME WAS DETERMINED AT RS.31 ,55,353/- INTER-ALIA BY MAKING ADDITION OF RS.27,42,943/- BEING BOGUS P URCHASES. ON SUCH ADDITION OF RS.27,42,943/- AO VIDE ORDER DT.08.07 .2015 PASSED U/S 271(1)(C) OF THE ACT LEVIED PENALTY OF RS.9,26,263/-. AG GRIEVED WITH THE PENALTY ORDER OF AO, ASSESSEE CARRIED THE MATTER BE FORE LD.CIT(A), WHO VIDE ORDER DT.02.08.2018 (IN APPEAL NO.PN/CIT(A)-3/WD 3(1), PN/261/ 2015-16) V/ITO WD.9(3)/138/2013-14) GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE GROUNDS WHICH ARE ARGUM ENTATIVE IN NATURE AND THEREFORE NOT REPRODUCED BUT THE ONLY GRIEVANCE O F THE REVENUE IS WITH RESPECT TO THE DELETION OF PENALTY OF RS.9,26,263/- U /S 271(1)(C) OF THE ACT. 3. THE CASE FILE REVEALS THAT ON THE DATE OF HEARING NON E APPEARED BUT HOWEVER AN ADJOURNMENT APPLICATION WAS FILED. BEFORE US, LD.D.R. FAIRLY ADMITTED THAT THE TAX EFFECT INVOLVED IN THE PRESENT APPE AL OF REVENUE IS BELOW THE MONETARY LIMIT PRESCRIBED BY CBDT CIRCULAR DATED 11.07.2018. IN VIEW OF THE AFORESAID SUBMISSION OF LD.D.R. AND BASED ON T HE MATERIAL AVAILABLE ON RECORD, WE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSESSEE. 4. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATERIAL A VAILABLE ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY THE ORDER OF LD. CIT(A) IN RE SPECT OF DELETION OF PENALTY OF RS.9,26,263/-. AS PER THE RECENT ANNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 11.07.2018 (CIRCULAR NO . 3 OF 2018), 3 NO DEPARTMENT APPEALS ARE TO BE FILED AGAINST RELIEF GIVEN B Y LD. CIT(A) BEFORE THE INCOME TAX APPELLATE TRIBUNAL UNLESS THE TAX E FFECT, EXCLUDING INTEREST, EXCEEDS RS.20 LAKHS AND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO THE PENDING APPEALS ALSO. IN THE PRESENT CASE, IT IS AN UNDISPUTED FACT THAT ON THE ADDITION WHICH IS IN DIS PUTE, THE TAX EFFECT IS LESS THAN RS.20 LAKHS. IN THE ABSENCE OF ANY MAT ERIAL PLACED ON RECORD BY THE REVENUE TO DEMONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXCEPTIONS PROVIDED IN PARA 10 OF THE AFOR ESAID CBDT CIRCULAR, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESC RIBED BY THE INSTRUCTIONS OF THE AFORESAID CBDT CIRCULAR WOULD BE APPLICAB LE TO THE PRESENT APPEAL OF THE DEPARTMENT. WE THEREFORE HOLD THE PRESENT APPEAL OF REVENUE TO BE NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFEC T AND ACCORDINGLY DISMISS THE APPEAL OF REVENUE WITHOUT EXPRESS ING ANY OPINION ON MERITS OF THE CASE. HOWEVER, IN CASE THERE IS ANY ERR OR IN THE COMPUTATION OF THE TAX EFFECT INVOLVED OR IF FOR ANY REASON, THE AFORESAID CBDT CIRCULAR IS NOT APPLICABLE, IT WOULD BE OPEN TO THE RE VENUE TO SEEK REVIVAL OF THE APPEAL. THUS, THE GROUNDS OF THE REVENUE ARE DISMISSED. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON 24 TH DAY OF JULY, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 24 TH JULY, 2019. YAMINI 4 #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-4, PUNE. PR. CIT-3, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.