DCIT, New Delhi V. M/s Mussorrie Trading Co. Pvt. Ltd., New Delhi

ITA 4226/DEL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2478 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 01-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 254(2)

Judgement Text

ITA NO.-4226/DEL/2016. M/S MUSSORRIE TRADING CO. PVT. LTD. PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 4226/DEL/2016 ( ASSESSMENT YEAR: 2011-12) DCIT, CIRCLE-17(1), NEW DELHI. VS. M/S MUSSORRIE TRADING CO. PVT. LTD., C-26, WESTEND COLONY, NEW DELHI-110021. PAN NO: AAACM4889L APPELLANT RESPONDENT REVENUE BY : MS. RAKHI VIMAL, SR. DR ASSESSEE BY : SHRI C.S. ANAND, CA ORDER PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL BY REVENUE IS FILED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-19, NEW DELHI, [LD. CIT(A), FOR SHORT], DATED 05/05/2016 FOR ASSESSMENT YEAR 2011-12. GROUNDS TAKEN IN THIS APP EAL OF REVENUE ARE AS UNDER: 1. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN DELETING DISALLOWANCE OF CAPITAL GA INS OF RS. 90,77,014/- DESPITE THE FACT THAT DURING THE YEAR THE ASSESSEE HAD FAILED T O DISCHARGE ITS ONUS BY NOT PROVIDING SEPARATE ACCOUNTS OF ITS TWO PORTFOLIO I. E. INVESTMENT AND STOCK IN TRADE BY NOT DISCLOSING OF DETAILS OF SHARES AND ITS HOLD ING PERIOD FOR EACH PORTFOLIO SEPARATELY? ITA NO.-4226/DEL/2016. M/S MUSSORRIE TRADING CO. PVT. LTD. PAGE 2 OF 4 2. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN NOT CONSIDERING A LEGAL PRINCIPLE T HAT MODE OF BOOK ENTRY CANNOT CHANGE THE NATURE OF A RECEIPT? 3. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN NOT CONSIDERING A LEGAL PRINCIPLE T HAT MODE OF BOOK ENTRY CANNOT CHANGE THE NATURE OF A RECEIPT? 4. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN RELYING ON THE DECISION OF THE HON BLE HIGH COURT GUJRAT IN THE CASE OF CIT VS REWA SHANKER A KOTHARI (206) 283 ITR 338 AND THE HONBLE SUPREME COURT DECISION IN THE CASE OF CIT VS EXCEL INDUSTRIES LIM ITED (358 ITR 495) IN INSTANT CASE WHERE THE ASSESSEE HAD NOT EVEN DISCHARGE ITS INITIAL ONUS BY NOT PROVIDING SEPARATE ACCOUNT OF ITS TWO PORTFOLIO I.E. INVESTME NT AND STOCK IN TRADE? 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, A LTER OR FORGO ANY GROUND/(S) OF APPEAL EITHER BEFORE OR AT THE TIME O F HEARING OF THE APPEAL. (B) AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE BR OUGHT TO OUR NOTICE, AT THE TIME OF HEARING, THAT TAX EFFECT IN THIS APPEAL IS BELOW RS. 50,00,000/-. BOTH SIDES, [REPRESENTATIVES OF REVENUE AND THE ASSESSEE] WERE IN AGREEMENT, AT THE TIME OF HEARING BEFORE US, THAT THE TAX EFFECT IN THE PRESE NT APPEAL IS BELOW RS. 50,00,000/-. VIDE RECENT CBDT CIRCULAR NO. 17/2019 DATED 08.08.2 019 READ WITH EARLIER CBDT CIRCULAR NO. 3 OF 2018, DATED 11.07.2018, MINIMUM THRESHOLD LIMIT OF TAX EFFECT OF FILING OF APPEALS BY REVENUE IN INCOME TAX APPELLAT E TRIBUNAL (ITAT, FOR SHORT) HAS BEEN ENHANCED TO RS. 50,00,000/-. IN A SUBSEQUENT CLARIFICATION ISSUED BY CBDT VIDE F.NO. 279/MISC/M-93/2018-ITJ, DATED 20/08/2019, IT HAS BEEN CLARIFIED BY CBDT THAT THE AFORESAID REVISED MONETARY LIMIT IS ALSO APPLIC ABLE TO ALL PENDING APPEALS IN ITAT. HAVING REGARD TO THE AFORESAID, THE LD. SENIOR DEPA RTMENTAL REPRESENTATIVE FOR REVENUE DID NOT PRESS THE APPEAL. THE LEARNED AUTH ORIZED REPRESENTATIVE (AR, FOR ITA NO.-4226/DEL/2016. M/S MUSSORRIE TRADING CO. PVT. LTD. PAGE 3 OF 4 SHORT) FOR THE ASSESSEE ALSO SUBMITTED THAT THE APP EAL WAS NOT MAINTAINABLE IN VIEW OF THE AFORESAID CBDT CIRCULAR DATED 08.08.2019 AND 11 .07.2018; AND AFORESAID CLARIFICATION DATED 20.08.2019 ISSUED BY CBDT. THER EFORE, THIS APPEAL IS DISMISSED BEING NOT PRESSED AND ALSO BEING NOT MAINTAINABLE HAVING REGARD TO AFORESAID CBDT CIRCULAR NO. 17/2019 DATED 08.08.2019 READ WITH AFORESAID CB DT CIRCULAR NO. 3 OF 2018 IN THE LIGHT OF AFORESAID CLARIFICATION DATED 20/08/2019. (C) BEFORE LEAVING, WE CLARIFY THAT REVENUE WILL BE AT LIBERTY TO APPROACH INCOME TAX APPELLATE TRIBUNAL U/S 254(2) OF INCOME TAX ACT, 1961 SEEKING RECALL OF THIS ORDER AND, FOR RESTORATION OF THIS A PPEAL IF IT IS FOUND THAT APPEAL OF REVENUE IS NOT COVERED BY AFORESAID CBDT CIRCULA RS DATED 08.08.2019 AND 11.07.2018. (D) IN THE RESULT, THIS APPEAL BY REVENUE IS DISMISSED. OUR DECISION WAS ORALLY PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HE ARING ON THE DATE OF HEARING. NOW, THIS WRITTEN ORDER IS PRONOUNCED IN OPEN COURT ON 0 5/12/19. SD/- SD/- (H.S. SIDHU) (ANA DEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 05/12/19 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ITA NO.-4226/DEL/2016. M/S MUSSORRIE TRADING CO. PVT. LTD. PAGE 4 OF 4 ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER