DCIT, New Delhi V. Sh. Atul Jain, New Delhi

ITA 5257/DEL/2014

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9896 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 26-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Keywords: Unexplained investment; Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDEN T AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 5257/DEL/2014 AY: 20 11-12 DCIT, VS SHRI ATUL JAIN, CENTRAL CIRCLE-4, W-102, GREATER KAILASH P ART-I, NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) DEPARTMENT BY : SMT. APARNA KARAN, CIT DR ASSESSEE BY : SHRI ABHISHEK MATHUR, ADV. DATE OF HEARING: 27.06.2018 DATE OF PRONOUNCEMENT: 25.09.2018 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER OF THE LD. CIT(A)-XXXIII, NEW DELHI FOR ASSES SMENT YEAR 2011-12 ON THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETI NG THE ADDITION OF RS. 24,82,855/- AND RS. 25,88,980/- MAD E BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACTS THAT INSTRUCTION NO. 1916 OF CBDT DOES NOT TANTAMOUNT TO SATISFACTORILY EXPLANAT ION OF THE SOURCE OF ACQUISITION OF JEWELLERY AND HAS N O RELEVANCE WHILE MAKING ADDITIONS CONCERNING ITA NO. 5257/DEL/2014 ASSESSMENT YEAR 2011-12 2 UNEXPLAINED INVESTMENT DURING ASSESSMENT PROCEEDINGS. ADMITTEDLY, THE TAX EFFECT IN THE APPEAL IS BELOW T HE MONETARY LIMIT OF RS. 20 LAKHS. 2.1 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DATED 11 TH JULY, 2018 READ WITH SECTION 268 A OF THE INCOME TAX ACT, 1961, THIS APPEAL BY THE REVENUE SHOULD HAVE BEEN WITHDRAWN OR SHOULD NOT HAVE BEEN PRESSED BY THE REVENUE. 2.2 WE ALSO NOTE THAT VIDE CBDTS INSTRUCTIONS DA TED 20.08.2018 BEARING F.NO. 279/MISC.142/2007-ITJ(PT), THERE HAS BEEN AN AMENDMENT TO PARA 10 OF THE CIRCULAR NO. 3 OF 2018 DATED 11.07.2018 WHEREIN THE SAID PARA 10 HAS BEEN AMENDED AS UNDER:- 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SP ECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT. (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISION S 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 ITA NO. 5257/DEL/2014 ASSESSMENT YEAR 2011-12 3 (D) WHERE ADDITION RELATES TO UNDISCLOSED FOREIGN INCOME/UNDISCLOSED FOREIGN ASSETS (INCLUDING FINANC IAL ASSETS)/UNDISCLOSED FOREIGN BANK ACCOUNT. (E) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FR OM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT A GENCIES 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. 2.3 HOWEVER, AFTER GOING THROUGH THE RECORDS BEFO RE US, WE ARE OF THE OPINION THAT APPARENTLY THE DEPARTMENTS APP EAL IS NOT COVERED BY ANY OF THE AFORESAID EXCEPTIONS AS ENUME RATED IN THE AFORESAID AMENDMENT TO THE INSTRUCTIONS AND, THEREF ORE, DELAYING THE DISPOSAL OF THE APPEAL BY WAITING FOR THE REPOR T 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 ORDER BY FILING A MISC. APPLICATION BEFORE US IN CASE THE DEPARTMENTS APPE AL FALLS IN ANY OF THE ABOVE EXCEPTIONS. ACCORDINGLY, IN VIEW OF TH E CBDTS CIRCULAR NO. 3 OF 2018 DATED 11.7.2018, THE APPEAL BY THE REVENUE IS DISMISSED IN LIMINE. 3. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ITA NO. 5257/DEL/2014 ASSESSMENT YEAR 2011-12 4 ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH SEPTEMBER, 2018. SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA) PRESIDENT JUDICIAL MEMBER DATED: 25 TH SEPTEMBER, 2018 GS COPY FORWARDED TO: - 1) APPELLANT 2) RESPONDENT 3) CIT(A) 4) CIT 5) DR TRUE COPY BY ORDER ASSTT. REGISTRAR ITA NO. 5257/DEL/2014 ASSESSMENT YEAR 2011-12 5 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.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE 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