ITO, Ward-32(2), New Delhi V. Anwar Hussain Malik, New Delhi

ITA 2870/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7664 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 24-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Tax effect

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTNANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO.2870/DEL/2018 ASSTT. YEAR:2012-13 O R D E R PER LALIET KUMAR, J.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-31, NEW DE LHI DATED 28.02.2018 PERTAINING TO THE ASSESSMENT YEAR 2012-1 3. FOLLOWING GROUNDS HAVE BEEN RAISED IN THE APPEAL ARE AS UNDER :- 1. WHETHER LD. CIT (A) WAS JUSTIFIED IN DELETING THE A DDITION MADE BY THE AO I.R.O. OUTSTANDING LIABILITIES DESPITE THE FACT THAT THE A SSESSEE COULD NEITHER PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF T HE PARTIES NOR COULD PROVIDE ANY DETAILS/ DOCUMENTARY EVIDENCES TO JUSTI FY THEIR EXISTENCE, AND THUS THESE WERE AKIN TO CEASED/ NON EXISTING LIABIL ITIES. INCOME TAX OFFICER, WARD - 32(3), NEW DELHI VS. ANWAR HUSSAIN M ALIK, 1079-E, WARD NO. 1, MEHRAULI, NEW DELHI PAN-AMGPM9133N (APPELLANT) (RESPONDENT) DEPARTMENT BY: SMT. RINKU SINGH, SR. DR ASSESSEE BY : NONE DATE OF HEARING 22/7 /201 9 DATE OF PRONOUNCEMENT 22/7/2019 2 2. WHETHER LD. CIT (A) WAS JUSTIFIED IN RELYING UPON THE ASSESSEES SUBMISSION THAT CONFIRMATION FROM THE PARTIES WAS PROVIDED DUR ING THE ASSESSMENT PROCEEDINGS FOR PREVIOUS YEARS, IGNORING THE FACT T HAT PRINCIPAL OF RES JUDICATA IS NOT APPLICABLE IN THE CASE OF ASSESSMENT PROCEEDING S. 3. WHETHER LD. CIT (A) WAS JUSTIFIED IN PLACING COMPL ETE RELIANCE ON THE REMAND REPORT OF THE AO WHICH WAS SUBMITTED THROUGH THE JO INT COMMISSIONER (BEING THE SUPERVISORY AUTHORITY) AND IGNORING THE COMMENTS OF JOINT COMMISSIONER, WHO HAD CLEARLY BROUGHT OUT FALLACIES IN THE CONTENTION S OF THE ASSESSEE TO JUSTIFY THE OUTSTANDING LIABILITIES. 4. WHETHER LD. CIT (A) WAS JUSTIFIED IN ACCEPTING THE LOAN FROM MS. SAKIRAN AHMED, AS EXPLAINED IGNORING THAT THE AMOUNT OF RS. 15 LAKH WAS GIVEN BY MS. SAKIRAN AHMED OUT OF THE UNACCOUNTED INCOME OF ASSE SSEE THROUGH A SHAM PROPERTY TRANSACTION BETWEEN THE ASSESSEE AND HIS M OTHER. 5. WHETHER LD. CIT (A) WAS JUSTIFIED IN TREATING THE LOAN AMOUNT FROM THE MOTHER AS EXPLAINED, IGNORING THE STATEMENT OF MOTHER GIVE N BEFORE THE ASSESSING OFFICER, WHEREIN SHE DENIED THE CONTENTION OF THE A SSESSEE. 2. FROM THE PERUSAL OF THE GROUNDS OF APPEAL IT IS APPARENT THAT THE ADDITION DELETED BY THE LD. CIT(A) AS PER PARAGRAPH 5.3 ARE TO THE TUNE OF RS. 60,50,000/- AND THEREFORE, THE TAX EFFECT IS LESS THAN THE UPPER LIMIT PRESCRIBED BY THE CBDT I.E. LESS THAN 20,00,0 00/-. THE CBDT VIDE CIRCULAR NO. 3/2018 DATED 11TH JULY, 2018 HAD INSTRUCTED THAT THE TAX APPEAL IS UNDER LIMIT OF RS. 20,00,000/- AN D THE APPEAL IS WITHDRAWAL. 3. DURING THE COURSE OF HEARING, THE LEARNED SR. D R ALTHOUGH SUPPORTED THE ORDER OF THE AO, BUT COULD NOT CONTRO VERT THE FACT THAT TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS. 20,00,000/-. THEREFORE, THE PRESENT APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF RECENT CIRCULAR OF CBDT NO. 3/2018 DATED 11 TH JULY, 2018, WHEREBY THE MONETARY LIMIT OF TAX EFFECT FOR NOT FI LING APPEALS BEFORE THE TRIBUNAL HAS BEEN REVISED TO RS. 20,00,000/-. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD, INCLUDING THE ABOVE CIRCULAR, WE FIND THAT THE ABOVE CIRCULAR OF CBDT ON PECUNIARY LIMIT HAS BEEN ISSUED IN 3 SUPERSESSION OF EARLIER CBDT CIRCULAR NO. 21 OF 201 5 DATED 10.12.2015, REVISING THE MONETARY LIMIT OF TAX EFFE CT FROM RS. 10,00,000/- TO RS. 20,00,000/-. THESE INSTRUCTIONS OF CBDT HAVE NOW STATUTORY FORCE WITHIN THE PROVISIONS OF SECTION 26 8A AND ARE MADE APPLICABLE TO THE PENDING APPEALS ALSO BY VIRTUE OF PARA 13 OF THE CIRCULAR. 5. THIS CIRCULAR CONTAINS CLEAR INSTRUCTIONS TO TH E DEPARTMENT TO WITHDRAW OR NOT TO PRESS SUCH APPEALS FILED BEFORE THE ITAT WHEREIN TAX EFFECT INVOLVED DOES NOT EXCEED RS. 20,00,000/- . IT IS NOT THE CASE OF THE REVENUE THAT THE PRESENT APPEAL COMES WITHIN THE SWEEP OF EXCLUSION CLAUSES AS GIVEN IN PARA NO. 10 & 11 OF T HE SAID CIRCULAR. THUS, GOING BY THE PRESCRIPTION OF THE AFORE-NOTED CBDT INSTRUCTIONS, AND WITHOUT GOING INTO MERITS OF THE CASE, WE DISMI SS THE INSTANT APPEAL FILED BY THE REVENUE, BEING NOT MAINTAINABLE , AS THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS. 20.00 LACS . 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED IN- LIMINIE. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JULY, 2019. SD/- SD/- (N.K. BILLAIYA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22/07/2019 SH 4 COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI DATE DRAFT DICTATED ON 22.07.2019 DRAFT PLACED BEFORE AUTHOR 22 .07 .2019 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON FILE COMES BACK TO PS/SR. PS UPLOADED ON 22 .0 7 .2019 FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.