DCIT, Central Circle- Ii , Faridabad V. Bholeji Infratrade Pvt. Ltd., Faridabad

ITA 3353/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4696 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus Share capital; Tax effect
• Section: 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.3353/DEL/2018 (FOR ASSESSMENT YEAR : 2008-09) DE PUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II, FARIDABAD VS. M/S BHOLEJI INFRATRADE PVT. LTD., SHOP NO. E-40, NEHRU GROUND, FARIDABAD PAN NO. AACCB 9666 L (APPELLANT) (RESPONDENT) RE VENUE BY SHRI SATPAL GULATI, CIT DR A SSESSEE BY SHRI. DEEPESH GARG, ADV DATE OF HEARING: 22 / 0 4 /202 1 DATE OF PRONOUNCEMENT: 22 / 0 4 /202 1 ORDER PER MS. SUCHITRA KAMBLE, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 27.02.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) -2, GURGAON RELATING TO ASSESSMENT YEAR 2008-09. 2. REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEALS: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 50,00,000/- MADE U/S 68 OF THE IT ACT, 1961 BY THE ASSESSING OFFICER. ITA NO.3353 /DEL/2018 DCIT VS. BHOLEJI INFRATRADE PVT. LTD. A.Y. 2008-09 2 (II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A), WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 50,00,000/- MADE ON PROTECTIVE BASIS ON ACCOUNT OF BOGUS SHARE CAPITAL / SHARE PREMIUM RECEIVED DURING THE YEAR BY THE ASSESSEE.] (III) THE APPELLANT CRAVES TO ADD, AMEND, ALTER OR MODIFY ANY GROUND OF APPEAL AT THE TIME OF HEARING APPEAL. 3. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THAT IN THE IMPUGNED APPEAL OF REVENUE, THE TAX INVOLVED IS LESS THAN THE MONETARY LIMIT OF RS.50 LAKH AND THEREFORE, THE APPEAL IS NOT MAINTAINABLE. LEARNED CIT DR DID NOT CONTROVERT THE SUBMISSIONS MADE BY LD. A.R. 4. WE HAVE HEARD THE BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WE FIND THAT REVENUE IS AGGRIEVED BY THE ORDER OF LEARNED CIT(A) IN RESPECT OF THE RELIEF GIVEN BY HIM. WE FIND THAT CBDT VIDE CIRCULAR NO. 3/2018 DATED 11.07.2018 HAD INCREASED THE LIMIT FOR FILING APPEAL BEFORE ITAT AT RS. 20 LAKHS. THE LIMIT FOR FILING APPEALS BEFORE ITAT AND OTHER AUTHORITIES WERE ENHANCED BY CBDT VIDE CIRCULAR NO.17 OF 2019 DATED 08.08.2019. AS PER THE AFORESAID CBDT CIRCULAR DATED 08.08.2019, NO DEPARTMENT APPEALS ARE TO BE FILED AGAINST RELIEF GIVEN BY THE LEARNED CIT(A) BEFORE THE INCOME TAX APPELLATE TRIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST, EXCEEDS RS.50 LAKHS. WE FIND THAT IN THE PRESENT CASE, THE TAX EFFECT INVOLVED IS LESS THAN RS.50 LAKHS. IN THE ABSENCE OF ANY MATERIAL PLACED ON RECORD BY THE REVENUE TO ITA NO.3353 /DEL/2018 DCIT VS. BHOLEJI INFRATRADE PVT. LTD. A.Y. 2008-09 3 DEMONSTRATE THAT THE ISSUE IN THE PRESENT APPEAL IS COVERED BY EXCEPTIONS PROVIDED IN PARA 10 OF THE AFORESAID CBDT CIRCULAR OF 11.07.2018, WE ARE OF THE VIEW THAT THE MONETARY LIMIT PRESCRIBED BY THE INSTRUCTIONS OF THE CDBT CIRCULAR DATED 08.08.2019 WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTMENT. WE THEREFORE HOLD THE PRESENT APPEAL OF REVENUE TO BE NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, IN CASE THERE IS ANY ERROR 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 REVENUE TO SEEK REVIVAL OF THE APPEAL. THUS THE APPEAL OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.04.2021, IMMEDIATELY AFTER CONCLUSION OF THE HEARING OF THE MATTER IN VIRTUAL MODE. SD/- SD/- (ANIL CHATURVEDI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:- 22.04.2021 PY* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI