INCOME TAX OFFICER-15(2)(2), MUMBAI V. M/S.NISHDISH INFRASTRUCTURE PRIVATE LIMITED, MUMBAI

ITA 6003/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3514 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 25-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIKLD
• Assessee Lawyers: DHARAN GANDHI LD
• Keywords: Tax effect; Penny stocks; Capital Gains
• Section: 68

Judgement Text

ITA NO.6003/MUM/2017 ASSESSMENT YEAR :2010-11 M/S. NISHDISH INFRASTRUCTURE P.LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.6003/MUM/2017 ( / ASSESSMENT YEAR : 20 10-11) INCOME TAX OFFICER - 1 5 ( 2 )( 2 ) ROOM NO.15B AAYKAR BHAVAN, M.K. ROAD MUMBAI- 400 020. / VS. M /S. NISHDISH INFRASTRUCTURE P.LTD. 410, DEVARATA BUILDING 4TH FLOOR, PLOT NO.83 SECTOR-17, VASHI NAVI MUMBAI- 400 705. '( ./ ./PAN/GIR NO. AADCN-0103-F ( (* /APPELLANT ) : ( +,(* / RESPONDENT ) ASSESSEE BY : SHRI DHARAN GANDHI LD. AR REVENUE BY : MS. KAVITA P. KAUSHIK LD. DR / DATE OF HEARING : 28/11/2019 / DATE OF PRONOUNCEMENT : 28/11/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2010-11 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME- TAX (APPEALS)-24, MUMBAI, [CIT(A)] APPEAL NO. CIT(A )-24/ITO- 15(2)(2)/IT-41/2016-17 DATED 14/06/2017 QUA DELETION OF ADDITION OF RS.100 LACS U/S 68 AS MADE BY LD. AO ON ACCOUNT OF UNEXPLAINED SHARE APPLICATION MONEY. ITA NO.6003/MUM/2017 ASSESSMENT YEAR :2010-11 M/S. NISHDISH INFRASTRUCTURE P.LTD. 2 2. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE TAX EFFECT OF QUANTUM UNDER DISP UTE IS LESS THAN MONETARY LIMIT OF RS.50 LACS AS PRESCRIBED BY CENTR AL BOARD OF DIRECT TAXES IN ITS RECENTLY ISSUED CIRCULAR NO.17/2019 DA TED 08/08/2019 [F.NO.279/MISC.142/2007-TTJ(PT.) GOVERNMENT OF INDI A, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE] AND THEREFORE, THE APPEAL IS NOT MAINTAINABLE. 3. THE LD. DR CONTROVERTED THE SAME BY SUBMITTING T HAT THE ADDITIONS WERE MADE ON ACCOUNT OF UNEXPLAINED SHARE APPLICATI ON MONEY PURSUANT TO SEARCH ACTION BEING CARRIED OUT BY DGIT (INVESTI GATION) IN THE CASE OF SHRI PRAVIN KUMAR JAIN AND THE FACTUAL MATRIX WAS C OVERED BY EXCEPTION PROVIDED IN CBDT CIRCULAR NO. 23 OF 2019 DATED 06/0 9/2019 READ WITH OFFICE MEMORANDUM DATED 16/09/2019. 4. UPON PERUSAL OF CASE RECORDS, PRIMA FACIE, IT APPEARS THAT THE TAX EFFECT BEING CONTESTED BY THE REVENUE IS LESS THAN PRESCRIBED LIMIT OF RS.50 LACS AND THE SAME IS COVERED BY RECENTLY ISSU ED LOW TAX EFFECT CIRCULAR NO.17/2019 DATED 08/08/2019 ISSUED BY CENTRAL BOARD OF DIRECT TAXES [CBDT]. THIS RECENT CIRCULAR FURTHER ENHANCES THE MONETARY LIMIT FIXED IN EARLIER CIRCULAR NO.3 OF 2018 DATED 11/07/ 2018 ISSUED BY CBDT AS AMENDED ON 20/08/2018. UNDISPUTEDLY, THE FACTUAL MATRIX IS NOT COVERED BY ANY OF THE EXCEPTIONS AS PROVIDED IN PAR A-10 OF CIRCULAR NO. 3 OF 2018 DATED 11/07/2018. SO FAR AS THE EXCEPTIONS AS PROVIDED IN SUBSEQUENT CBDT CIRCULAR NO. 23 OF 2019 DATED 06/09 /2019 READ WITH OFFICE MEMORANDUM DATED 16/09/2019 IS CONCERNED, UP ON PERUSAL OF THE SAME, WE FIND THAT THE SAME APPLIES ONLY TO CASES I NVOLVING BOGUS LONG TERM CAPITAL GAINS (LTCG) / SHORT TERM CAPITAL LOSS (STCL) THROUGH ITA NO.6003/MUM/2017 ASSESSMENT YEAR :2010-11 M/S. NISHDISH INFRASTRUCTURE P.LTD. 3 PENNY STOCKS AND NOT APPLICABLE TO THE CASES OF UNE XPLAINED SHARE APPLICATION MONEY. 5. WE HAVE GONE THROUGH THE CIRCULAR AND FIND THAT THE TAX EFFECT IN DISPUTE IS BELOW PRESCRIBED LIMIT OF RS.50 LACS AND THE ASSESSEE STOOD BENEFITTED BY THE ABOVE CIRCULAR ISSUED BY CBDT WHE REIN THE MINIMUM MONETARY LIMIT FOR FILING THE APPEALS BEFORE VARIOU S APPELLATE AUTHORITIES HAVE BEEN FIXED AS UNDER: - S. NO. APPEALS/ SLPS IN INCOME-TAX MATTERS MONETARY LIMIT (RS.) 1 BEFORE APPELLATE TRIBUNAL 50.00,000 2 BEFORE HIGH COURT 1,00.00,000 3 BEFORE SUPREME COURT 2,00.00,000 THE AFORESAID LIMITS, AS PER PARA 13 OF THE CIRCULAR NO. 3 OF 2018 DATED 11/07/2018, APPLIES TO PENDING APPEALS ALSO. IN VIE W OF THE ADMITTED POSITION, WE DISMISS THE REVENUES APPEAL. 6. AT THE SAME TIME, A LIBERTY IS GIVEN TO REVENUE TO SEEK RECALL OF THE APPEAL, IF AT A LATER STAGE, IT IS FOUND THAT THE M ATTER IS COVERED BY ANY EXCEPTIONS PROVIDED IN ANY OF THE CIRCULAR OR IN CA SE THE TAX EFFECT AS AGITATED BY REVENUE EXCEEDS THE PRESCRIBED MONETARY LIMIT. 7. IN THE RESULT, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH NOVEMBER, 2019. SD/- SD/- (MAHAVIR SINGH) (MA NOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 28/11/2019 SR.PS, JAISY VARGHESE ITA NO.6003/MUM/2017 ASSESSMENT YEAR :2010-11 M/S. NISHDISH INFRASTRUCTURE P.LTD. 4 !' ! / COPY OF THE ORDER FORWARDED TO : 1. (* / THE APPELLANT 2. +,(* / THE RESPONDENT 3. 3 ( ) / THE CIT(A) 4. 3 / CIT CONCERNED 5. 45+.6 , 6 , / DR, ITAT, MUMBAI 6. 578 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.