ACIT, Circle-5(1), Bhubaneswar V. Shri Sourab Agarwal, Bhubaneswar

ITA 409/CTK/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0891 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 30-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K AGARWAL CAS
• Keywords: Tax effect; Revised return
• Section: 201; 143(2); 148

Judgement Text

P A G E 1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO S . 214 & 409 /CTK/201 8 ASSESSMENT YEAR : 201 4 - 2015 ACIT, CIRCLE 5(1), BHUBANESWAR VS. SHRI SOURAB AGARWAL, PLOT NO.N - 1/93, IRC VILLAGE, NAYAPALI, BHUBANESWAR. PAN/GIR NO. ALEPA 1042 P (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : K.AGARWAL, CAS REVENUE BY : SHRI SUBHENDU DUTTA, DR DATE OF HEARING : 19 / 03 / 20 19 DATE OF PRONOUNCEMENT : 19 / 0 3 /20 20 O R D E R PER C.M.GARG,JM ITA NO.214/CTK/2018 IS DIRECTED AGAINST THE ORDER OF THE LD CIT(A) - 2, BHUBANESWAR DATED 16.3.2018 FOR THE ASSESSMENT YEAR 2014 - 15 IN THE MATTER OF ASSESSMENT U/S.144/147 OF THE ACT. 2. ITA NO.409/CTK/2018 IS DIRECTED AGAINST THE ORDER OF THE LD CIT(A) - 2, BHUBANESWAR DATED 14.9.2018 FOR THE ASSESSMENT YEAR 2014 - 15 IN THE MATTER OF PENALTY UNDER SECTION 271 OF THE ACT. 3. THE REVENUE IN ITS APPEAL IN ITA NO.214/CTK/2018 HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN LAW AS WELL AS ON FACTS IN ANNULLING THE REASSESSMENT ORDER PASSED BY THE AO ON THE GROUND OF NON - ISSUANCE OF NOTICE U/S. 143(2) OF THE I.T. ACT, WHEN THE ASSESSEE DID NOT FILE THE REVISED RETURN IN RESPONSE ITA NOS.214 & 409/CTK/2018 ASSESSMENT YEAR : 2014 - 2015 P A G E 2 | 4 TO NOTICE U/S. 148 OF THE ACT AS PER THE OPTION AVAILABLE IN THE E - FILI NG PORTAL AND WITHOUT WHICH THE AO COULD NOT GENERATE THE NOTICE U/S. 143(2) OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN LAW AS WELL AS ON FACTS IN ANNULLING THE REASSESSMENT ORDER PASSED BY THE AO ON THE GROUND OF NON - ISSUANCE OF NOTICE U/S.143(2) OF THE L.T. ACT, WHEN THE SAME IS CUR ABLE U/S.292BB OF THE ACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS NOT JUSTIFIED IN LAW AS WELL AS ON FACTS IN NOT CONSIDERING THE MERITS OF THE ADDITIONS MADE BY THE AO AND ANNULLING THE ASSESSMENT ORDER MERELY ON TECHNICAL GROUNDS AND ON THE BASIS OF THE JUDGEMENTS OF VARIOUS HIGH COURTS. 4. AT THE OUTSET, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN BOTH THE APPEALS IS BELOW RS.50 LAKHS AND, THEREFORE, IN VIEW OF CBDT CIRCULAR NO.17/2019 DATED 8 TH AUGUST, 2019, THE SAME ARE NOT MAINTAINABLE AND SHOULD BE DISMISSED. 5. WE FIND THAT V IDE CBDT CIRCULAR NO.17/2019 IN F.NO.279/MISC.142/2007 - ITJ(PT) DATED 8TH AUGUST, 2019, THE INCOME TAX DEPARTMENT HAS FURTHER LIBERALIZED ITS POLICY FOR NOT FILING APPEALS AGAINST THE DECISIONS OF THE APPELLATE AUTHORITIES IN FAVOUR OF THE TAXPAYERS, WHEREIN TAX INVOLVED IS BELOW CERTAIN THRESHOLD LIMITS, AND ANNOUNCED ITS POLICY DECISION NOT TO FILE, OR PRESS, THE APPEALS, BEFORE THIS TRIBUNAL, AGAINST THE APPELLATE ORDERS FAVOURABLE TO THE ASSESSEE IN THE CASES IN WHICH OVERALL TAX EFFECT, EXCLUDING INTEREST EXCEPT WHEN INTEREST ITSELF IS IN DISPUTE, IS RS 50,00,000/ - OR LESS. 6. THIS CIRCULAR, ONLY ENHANCES THE MONETARY LIMITS AND GIVES FURTHER RELAXATION. THE OLD CIRCUL AR, BEYOND ANY DISPUTE OR CONTROVERSY, CATEGORICALLY APPLIED TO THE PENDING APPEALS AS ON THE DATE OF ISSUANCE OF CIRCULAR. ITA NOS.214 & 409/CTK/2018 ASSESSMENT YEAR : 2014 - 2015 P A G E 3 | 4 7. THE CIRCULAR DATED 8TH AUGUST 2019 IS NOT A STANDALONE CIRCULAR. IT IS TO BE READ IN CONJUNCTION WITH THE CBDT CIRCULAR NO. 3/2018 (SUBSEQUENT AMENDMENT THERETO), AND ALL IT DOES IS TO REPLACE PARAGRAPH NOS. 3 AND 5 OF THE SAID CIRCULAR. 8. THE HON'BLE SUPREME COURT IN THE CASE OF THE COMMISSIONER OF INCOME TAX - 5,NEW DELHI VS. KESHAV POWER LTD., IN SLP NO.21497/2019 DATED 16.0 8.2019 REPORTED IN 2019(8)TMI 811(SC) HAS ALSO APPLIED THE CIRCULAR NO.17/2019 DATED 08.08.2019 AND HAS DISMISSED THE APPEAL HOLDING AS FOLLOWS: 'SINCE THE TAX EFFECT INVOLVED IN THE MATTER IS LESS THAN RS.2 CRORES, GOING BY THE LATEST CIRCULAR ISSUED BY THE CBDT, WE SEE NO REASON TO INTERFERE IN THIS MATTER. THE SPECIAL LEAVE PETITION IS DISMISSED, LEAVING ALL THE QUESTIONS OF LAW OPEN'. 9. LEARNED D.R. SUBMITS THAT LIBERTY MAY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIFICATIONS, AND TO S EEK RECALL THE DISMISSAL OF APPEAL AND RESTORATION OF THE APPEAL IN THE CASE: (I) IN WHICH IT CAN BE DEMONSTRATED THAT THE APPEALS ARE COVERED BY THE EXCEPTIONS, AND (II) WHICH ARE INADVERTENTLY INCLUDED IN THIS BUNCH OF APPEALS, WHEREIN THE TAX EFFECT, IN TERMS OF THE CBDT CIRCULAR (SUPRA), EXCEEDS RS 50,00,000. 10. WE ACCEPT THE REQUEST OF LD D.R. WE ALSO MAKE IT CLEAR THAT THE APPELLANT SHALL BE AT LIBERTY TO POINT OUT THE CASE WHICH IS WRONGLY INCLUDED IN THE APPEAL SO SUMMARILY DISMISSED, EITHER OWING TO WRONG COMPUTATION OF TAX EFFECT OR OWNING TO SUCH CASES BEING COVERED BY THE PERMISSIBLE EXCEP TIONS OR FOR ANY OTHER REASON, AND WE WILL TAKE APPROPRIATE REMEDIAL STEPS IN THIS REGARD. ITA NOS.214 & 409/CTK/2018 ASSESSMENT YEAR : 2014 - 2015 P A G E 4 | 4 11. IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF THE COMMISSIONER OF INCOME TAX - 5, NEW DELHI V S. KESHAV POWER LTD. (SUPRA) AND IN THE LIGHT OF THE ABOVE DISCUSSIONS, THE APPEALS FILED BY THE REVENUE ARE FOUND TO BE NON - MAINTAINABLE. 12. IN THE RESULT, THE APPEALS OF REVENUE STAND DISMISSED. ORDER PRONOUNCED ON 19 / 0 3 /20 20 . S D/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 19 / 0 3 /20 20 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : ACIT, CIRCLE 5(1), BHUBANESWAR 2. THE RESPONDENT. SHRI SOURAB AGARWAL, PLOT NO.N - 1/93, IRC VILLAGE, NAYAPALI, BHUBANESWAR 3. THE CIT(A) - 2 , BHUBANESWAR 4. PR.CIT - 2 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//