ASSISTANT COMMISSIONER OF INCOME 17(2), MUMBAI V. SHRI MOHD YUSUF ABDUL GANI BATATAWALA, MUMBAI

ITA 6302/MUM/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4481 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 18-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Penny stocks; Capital Gains
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 6302 / MUM/ 20 1 7 ( / ASSESSMENT YEAR: 200 9 - 10 ) ACIT 17(2) ROOM N O.13 4A, AAYAKAR BHAVAN , M. K. ROAD, MUMBAI - 400020 . / VS. SHRI MOHD YUSUF ABDUL GANI BATATAWALA G - BLOCK, SITARAM BUILDING, 79, PALTAN ROAD, MUMBAI - 400001. ./ ./ PAN/GIR NO. : AGSPB 5929 K ( / APPELLANT ) .. ( / RESPO NDENT ) / DATE OF HEARING : 15 / 10 / 20 20 / DATE OF PRONOUNCEMENT : 15 / 10 / 2020 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 14 .0 7 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 28 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 200 9 - 10 . 2 . THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE TAX EFFECT OF QUANTUM ORDER UNDER DISPUTE IS LESS THAN MONETARY LIMIT OF RS. 50 LACS AS PRESCRIBED BY CENTRAL BOARD OF DIRECT TAXES (CBDT) IN ITS RECENTLY ISSUED CIRCULAR NO. 17/2019 DATED 08.08.2019 (F. NO.279/MISC.142/2007 - TT J(PT.) GOVERNMENT OF INDIA, MINISTRY OF REVENUE BY : SHRI AKHTAR H. ANSARI (SR. A R) ASSESSEE BY: NONE ITA. NO. 6302 /M/201 7 A.Y. 20 0 9 - 10 2 FINANCE, DEPARTMENT OF REVENUE) , THEREFORE, THE PRESENT APPEAL IS NOT MAINTAINABLE. ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTIONS AND ARGUED THAT THE ISSUE IN DISPUTE IS UNDER EXCEPTION IN VIEW OF THE CBDT CIRCULAR NO. 23 OF 2019 DATED 06.09.2019 READ WITH OFF ICE MEMORANDUM DATED 16.09.2019, THEREFORE, THE APPEAL IS NOT LIABLE IN VIEW OF THE CIRCULAR DATED 08.08.2019. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ALSO RELYIN G UPON THE DECISION OF THE HONBLE ITAT BEARING 6003/M/2017 DATED 28.11.2019. 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE ISSUE HAS BEEN DEALT WITH BY HONBLE ITAT IN ITA. NO.60 03/M/2017 DATED 28.11.2019. RELEVANT FINDING IS HEREBY REPRODUCED AS UNDER.: - 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 B Y RECENTLY ISSUED 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 PARA - 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 REA D WITH OFFICE MEMORANDUM DATED 16/09/2019 IS CONCERNED, UPON PERUSAL OF THE SAME, WE FIND THAT THE SAME APPLIES ONLY TO CASES INVOLVING BOGUS LONG TERM CAPITAL GAINS (LTCG) / SHORT TERM CAPITAL LOSS (STCL) THROUGH PENNY STOCKS AND NOT APPLICABLE TO THE CAS ES OF UNEXPLAINED 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 WHEREIN THE MINIMUM ITA. NO. 6302 /M/201 7 A.Y. 20 0 9 - 10 3 MONE TARY LIMIT FOR FILING THE APPEALS BEFORE VARIOUS APPELLATE AUTHORITIES HAVE BEEN FIXED AS UNDER: - SR. NO. APPEALS/ SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (RS.) 1 BEFORE APPELLATE TRIBUNAL 50.00,000 50.00,000 2 2 BEFORE HIGH COURT 1,00.00,000 1,00.00 ,000 3 BEFORE SUPREME COURT 2,00.00,000 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 VIEW OF THE ADMITTED POSITION, WE DISMISS THE REVENUES APPEAL. 6. AT THE SAME TI ME, A LIBERTY IS GIVEN TO REVENUE TO SEEK RECALL OF THE APPEAL, IF AT A LATER STAGE, IT IS FOUND THAT THE MATTER IS COVERED BY ANY EXCEPTIONS PROVIDED IN ANY OF THE CIRCULAR OR IN CASE THE TAX EFFECT AS AGITATED BY REVENUE EXCEEDS THE PRESCRIBED MONETARY L IMIT. 4. SINCE THE ISSUE HAS DULY BEEN COVERED BY ABOVE SAID DECISIONS, THEREFORE, THE APPEAL STANDS DISMISSED. 5 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 /10 /2020 SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 15 / 10/ 2020 V IJAY PAL SING/SR. PS ITA. NO. 6302 /M/201 7 A.Y. 20 0 9 - 10 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDEN T. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI