DCIT, New Delhi V. M/s. NSCC Finlease Pvt. Ltd., New Delhi

ITA 5679/DEL/2015

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2459 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 07-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISH GOEL
• Keywords: Tax effect
• Section: 69C; 254(2); 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: A: NEW DELHI) BEFORE H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT ME MBER ITA NO:- 5679/DEL/2015 (ASSESSMENT YEAR: 2007-08) DCIT, CIRCLE 18(2), NEW DELHI VS M/S NSCC FINLEASE PVT. LTD., 352, 3 RD FLOOR, CITY CENTRE-II, GULABI BAGH, NEW DELHI PAN-AABCN6476B APPELLANT RESPONDENT APPELLANT BY MS. RAKHI VIMAL , SR. DR RESPONDENT BY SH. ASHISH GOEL , C.A. ORDER PER ANADEE NATH MISSHRA, AM [A]. THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER DATED 28.07.2015 PASSED BY LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-42, NEW DELHI [IN SHORT, LD.CIT(A)] PERTAINING TO ASSESSMENT YEAR 2007-08. IN THIS APPEAL, THE TAX E FFECT IS LESS THAN THE MONETARY LIMIT FIXED BY THE CENTRAL BOARD OF DI RECT TAXES (IN SHORT CBDT) IN ITS CIRCULAR NO.17/2009 DATED 08.0 8.2019. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, CIT(A) IS JUSTIFIED IN QUASHING REASSESSMENT PROCEEDING U/S 1 47 OF INCOME TAX ACT (THE ACT) WITHOUT CONSIDERING PROVISIONS OF SEC TION 147 THE ACT AS AMENDED W.E.F 1.4.1989 WHICH STIPULATES THAT 'REASO N TO BELIEVE' 5 IS ONLY REQUIREMENT FOR REOPENING ASSESSMENT WITHIN A PERIOD OF 4 YEARS FROM THE END THE RELEVANT ASSESSMENT YEAR? ITA NO: - 5679/DEL/2015 PAGE | 2 2. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, CIT(A) IS JUSTIFIED IN QUASHING REASSESSMENT PROCEEDING U/S 1 47 OF THE ACT BY IGNORING THAT ALTHOUGH THE INVESTMENT IN SHARE CAPI TAL WAS DISCLOSED AND ACCEPTED IN THE ORIGINAL ASSESSMENT, BUT SUBSEQ UENT INVESTIGATION AND DISCOVERY BY ACIT, CENTRAL CIR.-22, NEW DELHI R EVEALED THAT THE INVESTMENT IN SHARE CAPITAL WAS NOT GENUINE? 3. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) IS JUSTIFIED IN QUASHING NOTICE U/S 148 OF THE ACT BY NOT CONSIDERING RATIO DECIDENDI LAID DOWN BY HON'BLE SUPREME COURT IN CAS E OF CIT V PHOOL CHAND BAJRANG LAI V ITO (1993) 203 ITR 456 ON SIMIL AR FACTS AND CIRCUMSTANCES? 4. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) IS JUSTIFIED IN DELETING ADDITION OF RS. 1,00,00,000 A ND RS. 2,50,000 MADE BY THE AO U/S 68 AND 69C OF THE ACT RESPECTIVELY WI THOUT CONSIDERING FINDINGS OF THE FACTS RECORDED BY THE AO HAVING DIR ECT BEARING ON THE ISSUE? 5. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) IS JUSTIFIED IN DELETING ADDITION OF RS. 1,00,00,000 A ND RS. 2,50,000 MADE BY THE AO U/S 68 AND 69C OF THE ACT RESPECTIVELY WI THOUT CONSIDER RATIO DECIDENDI LAID DOWN BY HON'BLE DELHI HIGH COURT IN CASE OF CIT V M/S. N.R. PORTFOLIO PVT. LTD. 2012- TIOL-1056-HC-DEL-IT ON SIMILAR ISSUE? 6. THAT THE ORDER OF THE CIT(A) IS ERRONEOUS AND I S NOT TENABLE ON FACTS AND IN LAW. [B]. AT THE OUTSET, IT WAS BROUGHT TO THE NOTICE B Y LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, AT THE T IME OF HEARING THAT TAX EFFECT IN THIS APPEAL IS BELOW RS. 50,00,0 00./-. VIDE RECENT CBDT CIRCULAR NO.17/2019 DATED 08.08.2019 READ WITH EARLIER CBDT CIRCULAR NO. 3 OF 2018, DATED 11.07.2018, MINI MUM THRESHOLD LIMIT OF TAX EFFECT FOR FILING OF APPEALS BY REVENUE IN INCOME TAX APPELLATE TRIBUNAL ('ITAT', FOR SHORT) H AS BEEN ENHANCED TO RS. 50,00,000/-. IN A SUBSEQUENT CLARIF ICATION 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 RE VISED MONETARY LIMIT IS ALSO APPLICABLE TO ALL PENDING APPEALS IN ITAT. THEREFORE, IN ITA NO: - 5679/DEL/2015 PAGE | 3 VIEW OF THE FOREGOING, WE ARE OF THE VIEW THAT THIS APPEAL FILED BY REVENUE IS NOT MAINTAINABLE. THE LEARNED DEPARTMENT AL REPRESENTATIVE ALSO DID NOT PRESS THE APPEAL. ACCOR DINGLY, THIS APPEAL IS DISMISSED BEING NOT PRESSED, AND ALSO NOT MAINTAINABLE, HAVING REGARD TO AFORESAID CBDT CIRCULAR NO. 17/201 9 DATED 08.08.2019 READ WITH AFORESAID CBDT CIRCULAR NO. 3 OF 2018 IN THE LIGHT OF AFORESAID CLARIFICATION DATED 20/08/2019. [C]. BEFORE LEAVING, WE CLARIFY THAT REVENUE WILL B E AT LIBERTY TO APPROACH INCOME TAX APPELLATE TRIBUNAL U/S 254(2) O F INCOME TAX ACT, 1961 SEEKING RECALL OF THIS ORDER AND, FOR RESTORATION OF THE APPEAL IF IT IS FOUND THAT THIS APPEAL OF REVENUE IS NOT COVERED BY AFORESAID CBDT CIRCULARS DATED 08.08.2019 AND 11.07.2018. [D]. IN THE RESULT, THE APPEAL BY REVENUE IS DISMI SSED. OUR DECISION WAS ORALLY PRONOUNCED IN THE OPEN COURT AF TER CONCLUSION OF HEARING ON THE DATE OF HEARING. NOW, THIS WRITTE N ORDER IS PRONOUNCED IN OPEN COURT ON 04.12.2019. SD/- SD/- (H.S. SIDHU) (ANADEE N ATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 04.12.2019 SH