ITO, New Delhi V. M/s Akshay Commercial Pvt. Ltd., New Delhi

ITA 6338/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5881 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 13-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY KAPOOR
• Assessee Lawyers: GHANSHYAM GUPTA
• Keywords: Source of fund; Tax effect
• Section: 254(2); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: A: NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT ME MBER ITA NO:- 6338/DEL/2016 (ASSESSMENT YEAR: 2010-11) INCOME TAX OFFICER, WARD 2(1), ROOM NO. 375, 3 RD FLOOR, C.R. BUILDING, NEW DELHI-110002 VS M/S AKSHAY COMMERCIAL PVT. LTD., 4356/4C, ANSARI ROAD, DARYA GANJ, NEW DELHI PAN-AAHCA7735N APPELLANT RESPONDENT APPELLANT BY SHRI. SANJAY KAPOOR, SR. DR RESPONDENT BY SHRI. GHANSHYAM GUPTA , C.A. ORDER PER ANADEE NATH MISSHRA, AM [A]. THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST THE ORDER DATED 4.10.2016 PASSED BY LEARNED COMMISSIONER OF I NCOME TAX(APPEALS)-I, NEW DELHI [IN SHORT LD.CIT(A)] PE RTAINING TO ASSESSMENT YEAR 2010-11. 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. THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 95,00,000/- MADE BY THE AO U/S 68 OF THE I.T. ACT, 1961 PARTICULARLY WHEN THE ASSESSEE HAS FAILED TO FURNIS H EVIDENCE TO PROVE THE SOURCE OF FUND THE PERSON FROM WHOM SU CH HUGE SHARE CAPITAL / PREMIUM RECEIVED. ITA NO: - 6338/DEL/2016 PAGE | 2 1.1. LD. CIT(A) HAS NOT CONSIDERED THE ISSUE RAISED BY THE AO THAT THE INVESTMENT OF HUGE SUM IN THIS COMPANY BY THOSE WITH VERY MEAGER RESOURCES IS NOT PROBABLE. 1.2 LD. CIT(A) OUGHT TO HAVE EXAMINED THE ISSUE FRO M THE POINT OF VIEW OF HUMAN PROBABILITY AS THE ENTRY T HROUGH BANK ACCOUNT IS NOT A CONCLUSIVE PROOF AS OBSERVED BY HO NBLE SUPREME COURT IN CIT VS. P. MOHANAKALA (291 ITR 27 8(SC):- THE TRANSACTIONS THOUGH APPARENT WERE HELD TO BE N OT REAL ONE. MAY BE THE MONEY CAME BY WAY OF BANK CHEQUES AND PA ID THROUGH THE PROCESS OF BANKING TRANSACTION BUT THAT ITSELF IS OF NO CONSEQUENCES. [B]. AT THE OUTSET, LEARNED AUTHORIZED REPRESENTAT IVE OF THE ASSESSEE BROUGHT TO OUR NOTICE, AT THE TIME OF HEAR ING, THAT TAX EFFECT IN THIS APPEAL IS BELOW RS. 50,00,000./-. BO TH SIDES, [REPRESENTATIVES OF REVENUE AND THE ASSESSEES] WERE IN AGREEMENT, AT THE TIME OF HEARING BEFORE US, THAT T HE TAX EFFECT IN THIS APPEAL IS BELOW RS. 50,00,000/-. VIDE RECENT C BDT CIRCULAR NO.17/2019 DATED 08.08.2019 READ WITH EARLIER CBDT CIRCULAR NO. 3 OF 2018, DATED 11.07.2018, MINIMUM THRESHOLD LIMI T OF TAX EFFECT OF FILING OF APPEALS BY REVENUE IN INCOME TA X APPELLATE TRIBUNAL ('ITAT', FOR SHORT) HAS BEEN ENHANCED TO R S. 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 BE EN CLARIFIED ITA NO: - 6338/DEL/2016 PAGE | 3 BY CBDT THAT THE AFORESAID REVISED MONETARY LIMIT I S ALSO APPLICABLE TO ALL PENDING APPEALS IN ITAT. HAVING REGARD TO TH E AFORESAID, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL WAS NOT MAINTAINABLE. THEREFORE, IN VIEW OF THE FOREGOING, THIS APPEAL IS DISMISSED BEING NOT MAINTAINABLE, HAVING REGARD TO AFORESAID CBDT CIRCULAR NO. 17/2019 DATED 08.08.2019 READ WITH AFO RESAID CBDT CIRCULAR NO. 3 OF 2018 IN THE LIGHT OF AFORESAID CL ARIFICATION 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 19.09.2019 SD/- SD/- (H.S. SIDHU) (ANADEE NA TH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 19.09.2019 SH ITA NO: - 6338/DEL/2016 PAGE | 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED 18.09.2019 DRAFT PLACED BEFORE AUTHOR APPROVED DRAFT COMES TO THE SR.PS/PS ORDER SIGNED AND PRONOUNCED ON FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER. DATE OF UPLOADING ON THE WEBSITE 19.09.2019