ITO 3(3)(1), MUMBAI V. RADHEY PROPERTIES P. LTD, MUMBAI

ITA 3176/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9896 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M HEMALATHA
• Keywords: Accommodation entries; Tax effect
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO.3176/MUM/2017 (ASSESSMENT YEAR 2009-10) THE INCOME TAX OFFICER 3(3)(1), ROOM NO.602, 6 TH FLOOR, AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400 020 ...... A PPELLANT VS. M/S. RADHEY PROPEPRTIES PVT. LTD. 83,AWING, MITTAL TOWER, NARIMAN POINT, MUMBAI 400021 PAN:AAECR 0333E .... RESPO NDENT APPELLANT BY : MS. M.HEMA LATHA RESPONDENT BY : SHRI RAJESH S. SHAH DATE OF HEARING : 12/07/2017 DATE OF PRONOUNCEMENT : 06/10/2017 ORDER THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAI NING TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-8, MUMBAI DATED 31/01/2017, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W.S. 147 OF THE I NCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 11/02/2016. 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUND OF APPEAL:- '1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD.CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS.33,00,000 MADE U/S.68 OF THE I.T.ACT, 1961 ON ACCOUNT OF RECEI PT OF SHARE 2 ITA NO.3176/MUM/2017 (ASSESSMENT YEAR 2009-10) APPLICATION MONEY WITHOUT APPRECIATING THE FACT THA T THE ASSESSEE HAD FAILED TO ESTABLISH THE GENUINENESS AND CREDITWORTH INESS OF THE INVESTMENT MADE BY THE SHARE APPLICANTS, 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS.31 ,50,000/- MADE U/S.68 OF THE I.T.ACT, 1961 ON ACCOUNT OF RECEIPT OF SHARE APPLICATION MONEY WITHOUT APPRECIATING THE FACT THAT SPECIFIC I NFORMATION WAS RECEIVED FROM DGIT(INV.), MUMBAI THAT THE ALLEGED P ARTIES BELONGING TO PRAVEEN KUMAR JAIN GROUP HAD CONFESSED TO PROVIDI NG ACCOMMODATION ENTRIES WITHOUT CONDUCTING ANY BUSINE SS ACTIVITY AND THAT THE ASSESSEE WAS ONE OF THE BENEFICIARY OF SUC H ACCOMMODATION ENTRIES. 3. AT THE TIME OF HEARING, THE LD. REPRESENTATIVE F OR THE ASSESSEE POINTED OUT THAT THE TAX EFFECT INVOLVED IN THIS APPEAL I S LESS THAN RS.10.00 LACS AS PRESCRIBED IN THE CBDT CIRCULAR NO.21/2015 DATE D 10/12/2015, WHICH HAS REVISED THE MONETARY LIMITS FOR FILING OF APPEALS B Y THE DEPARTMENT BEFORE THE TRIBUNAL RETROSPECTIVELY. THE LD. DEPARTMENTAL REPR ESENTATIVE HAS NOT DISPUTED THE AFORESAID FACT-SITUATION. 4. NOTABLY, IN THE INSTANT CASE, THE ASSESSING OFFI CER MADE A DISALLOWANCE UNDER SECTION 68 OF THE ACT OF RS.33,00,000/- AND THE CIT(A) HAS DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. THE TA X EFFECT ON THIS DISPUTED INCOME COMES TO RS.9,90,000/- EXCLUDING THE SURCHAR GE AND EDUCATION CESS. OUR CO-ORDINATE BENCH IN THE CASE OF DCIT VS. M/S. DOME BELL ELECTRONICS INDIA LTD., IN ITA NO.2480/MUM/2012 DATED 22/07/2016 HAS HELD THAT FOR THE PURPOSES OF CONSIDERING THE AMOUNT OF TAX EFFECT AS ENVISAGED IN CBDT CIRCULAR DATED 10/12/2015 (SUPRA), WHAT HAS TO BE CONSIDERED IS THE AMOUNT OF TAX EXCLUDING THE AMOUNT OF SURCHARGE AND EDUCATION CES S. THEREFORE, IN THIS VIEW OF THE MATTER, THE TAX EFFECT IN DISPUTE IN THE CA PTIONED APPEAL IS STATED TO BE 3 ITA NO.3176/MUM/2017 (ASSESSMENT YEAR 2009-10) BELOW THE MONETARY LIMIT OF RS.10.00 LACS SPECIFIED IN THE CBDT CIRCULAR DATED 10/12/2015 (SUPRA), THE SAME IS DISMISSED AS NOT MA INTAINABLE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/10/2017 SD/- (G.S.PANNU) ACCOCUNTANT MEMBER MUMBAI, DATED 06/10/2017 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI