ACIT, New Delhi V. Sh Mahagun India Pvt. Ltd., Delhi

ITA 3660/DEL/2012

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2189 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 12-06-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 12-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHEFALI SAWROOP
• Assessee Lawyers: DR RAKESH GUTPA
• Keywords: Audit objection; Tax effect

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO. 3660/DEL/2012 ASSESSMENT YEA R: 2004-05 ACIT, CC-03, NEW DELHI VS M/S MAHAGUN INDIA ( P) LTD., ROOM NO. 355, 3 RD FLOOR, C-215, VIVEK VIHAR, ARA CENTRE, NEW DELHI JHANDEWALAN EXTN., (PAN: AAACM6572A) NEW DELHI 55 (APPELLANT) (RESPONDENT) AND CO NO. 299/DEL/2012 (IN ITA NO. 3660/DEL/2012) ASSESSMENT YEA R: 2004-05 M/S MAHAGUN INDIA (P) LTD., VS. ACIT, CC-03, NEW DELHI NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : MS. SHEFALI SAWROOP, CIT(DR) RESPONDENT BY : DR. RAKESH GUTPA, ADV. & SH. SOMIL AGARWAL, ADV. DATE OF HEARING: 29.08.2018 DATE OF PRONOUNCEMENT: 31.08.2018 ORDER PER ANADEE NATH MISSHRA, ACCOUNTANT MEMBER THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTIO N BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY T HE LD. CIT (APPEALS)-II, NEW DELHI DATED 30.4.2012 RELATING T O A.Y. 2004-05. 2. ADMITTEDLY, THE TAX EFFECT IS BELOW THE MONETAR Y LIMIT OF RS. 20 LAKHS. 2 3. IN TERMS OF CBDT CIRCULAR NO. 3/2018 DATED 11 TH JULY, 2018 READ WITH SECTION 268 A OF THE INCOME TAX ACT, 1961 , THIS APPEAL BY THE REVENUE SHOULD HAVE BEEN WITHDRAWN OR SHOULD NO T HAVE BEEN PRESSED BY THE REVENUE. 4. LD. CIT(DR), HOWEVER PLACED ON RECORD THE COPY OF CBDTS INSTRUCTIONS DATED 20.08.2018 BEARING F.NO. 279/MISC.142/2007-ITJ(PT) AND SUBMITTED THAT THERE HAS BEEN AN AMENDMENT TO PARA 10 OF THE CIRCULAR NO. 3 OF 201 8 DATED 11.07.2018 WHEREIN, THE SAID PARA 10 HAS BEEN AME NDED AS UNDER:- 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LES S THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT. (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN INCOME / UNDISCLOSED FOREIGN ASSETS (INCLUDING FINANCIAL ASSETS)/UNDISCLOSED FOREIGN BANK ACCOUNT. (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ ED/DRI/SFIO / DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). (F) CASES WHERE PROSECUTION HAS BEEN FILED BY THE DEPARTMENT AND IS PENDING IN THE COURT. 3 4.1 LD. CIT(DR) FURTHER SUBMITTED THAT IN VIEW OF THE AFORESAID AMENDMENT THE DEPARTMENT REQUIRES TIME IN ORDER TO OBTAIN A REPORT FROM ITS FIELD OFFICERS AS TO WHETHER THE DEPARTMEN TS APPEAL IS COVERED UNDER ANY OF THE AFORESAID EXCEPTIONS. 5. HAVING HEARD THE LD. CIT(DR) AND AFTER GOING T HROUGH THE RECORDS BEFORE US, WE ARE OF THE OPINION THAT APPAR ENTLY THE DEPARTMENTS APPEAL IS NOT COVERED BY ANY OF THE AF ORESAID EXCEPTIONS AS ENUMERATED IN THE AFORESAID AMENDMENT TO THE IN STRUCTIONS AND THEREFORE, DELAYING THE DISPOSAL OF THE APPEAL BY W AITING FOR THE REPORT FROM THE FIELD OFFICERS WILL NOT BE IN TRUE SPIRIT OF THE CIRCULAR. ACCORDINGLY, WE DEEM IT FIT TO TREAT THIS APPEAL AS DISMISSED WITH THE LIBERTY TO THE DEPARTMENT TO SEEK RECALL OF THIS OR DER BY FILING A MISC. APPLICATION, BEFORE US IN CASE THE DEPARTMENTS AP PEAL FALLS IN ANY OF THE ABOVE EXCEPTIONS. ACCORDINGLY, IN VIEW OF THE C BDTS CIRCULAR NO. 3 OF 2018 DATED 11.7.2018, THE APPEAL BY THE REVENU E IS DISMISSED IN LIMINE . 6. THE LD. AR HAS SUBMITTED THAT THE CROSS OBJECTIO N IS NOT BEING PRESSED. HENCE, THE SAME IS DISMISSED AS NOT PRES SED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE AS W ELL AS CROSS OBJECTION OF THE ASSESSEE STAND DISMISSED. SD/- SD/- (SUDHANSHU SRIVASTAVA) ( ANADEE NATH MISSHRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31.08.2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT(A) 4. DR, ITAT BY ORDER ASSTT. REGISTRAR 4