ACIT, New Delhi V. M/s. Prabhatam Radisafe Ltd., New Delhi

ITA 6371/DEL/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3951 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Keywords: Additional evidence; Assessment record; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: B: NEW DELHI) BEFORE SHRI R.K.PANDA, ACCOUNTANT MEMBER & MS. S.KAMBLE, JUDICIAL MEMBER ITA NO:- 6371/DEL/2015 (ASSESSMENT YEAR: 2006-07) ACIT, CENTRAL CIRCLE-15, ROOM NO.-353, E-2, ARA CENTRE, JAHNDEWALAN EXTN., NEW DELHI. VS PRABHATAM RADISAFE LTD., 38, RASHTRIYA TOWER, RANI JHANSI ROAD, NEW DELHI-110055. PAN-AADCP7474P APPELLANT RESPONDENT APPELLANT BY MS. NIDHI SRIVASTAVA, CIT DR RESPONDENT BY SH. GAUTAM JAIN, ADV. DATE OF HEARING 19.08.2019 DATE OF PRONOUNCEMENT 19 .08.2019 ORDER PER R.K.PANDA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 23.09.2015 PASSED BY LD.CIT(A)-XXVI, NEW DELH I PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 1. 32.93.277/- MADE U/S 69 OF THE ACT IN RESPECT OF CASH PAYMENT A S PER SEIZED DOCUMENT APPRECIATING THAT THE ASSESSEE DID NOT EXP LAIN THE ENTRIES IN THE SEIZED DOCUMENT IN THE COURSE OF ASS ESSMENT AND NO EXPLANATION WAS MADE IN THIS REGARD. ITA NO:- 6371/DEL/2015 (ASSESSMENT YEAR: 2006-07) PAGE | 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN ADMITTING ADDITIONAL EVIDENCES IN THE COURSE OF APPEAL WITHOUT OBTAINING ANY EXPLANATION OF THE ASSESSEE AS TO WHY THOSE EVIDENCES COULD NOT BE FILED BEFORE THE A O IN THE COURSE OF ASSESSMENT AND THEREBY CONTRAVENED THE PR OVISO RULE 46A(3) OF THE I.T. RULES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL EVIDEN CES IN THE FORM OF LETTER DATED 21.03.2014 FILED BY M/S PRABHATAM I NVESTMENT PVT. LTD. WITHOUT APPRECIATING THAT NO SUCH EVIDENC E WAS FILED BEFORE THE AO AND THIS FACT WAS CATEGORICALLY MENTI ONED IN THE REMAND REPORT OF THE AO, WHICH WAS NOT CONSIDERED B Y THE CIT(A). 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN HOLDING THAT ENTRIES REGARDING CASH PAYMENT IN THE SEIZED DOCUMENT PERTAINED TO M/S. PRABHATAM INFRASTRUCTURE LTD. BY MERELY RELYING IN THE SUBMIS SION OF THE ASSESSEE AND WITHOUT MAKING ANY VERIFICATION FROM T HE AO OF PRABHATAM INFRASTRUCTURE LTD. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE ORDER OF THE LD. CIT(A) IS PERVERSE ON FACTS AS THE RELEV ANT FACTS AS BROUGHT OUT IN THE ASSESSMENT RECORDS AS WELL AS IN THE REMAND REPORT HAS NOT BEEN CONSIDERED BY HIM. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE O F THE HEARING OF THE APPEAL. 3. LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUB MITTED THAT THE TAX EFFECT INVOLVED IN THE GROUNDS RAISED BY THE RE VENUE IS BELOW ITA NO:- 6371/DEL/2015 (ASSESSMENT YEAR: 2006-07) PAGE | 3 RS.50 LACS. REFERRING TO THE DECISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS DINESH MADHAVLAL PATEL IN ITA NO.1398/AHD/2004 VIDE ORDER DATED 14.08.2019, HE SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING THE RECENT CBDT CIRC ULAR DATED 08.08.2019, RAISING THE MONETARY LIMIT FOR FILING O F APPEAL BY THE REVENUE BEFORE THE TRIBUNAL TO RS.50,00,000/- HAS HELD THAT THIS CIRCULAR IS ALSO APPLICABLE TO THE PENDING APPEALS IN ADDITION TO THE APPEALS TO BE FILED HENCEFORTH. HE ACCORDINGLY, SU BMITTED THAT SINCE THE TAX EFFECT INVOLVED IN THE GROUNDS RAISED BY TH E REVENUE IS ADMITTEDLY BELOW RS.50,00,000/-, THEREFORE, IN VIEW OF THE RECENT CBDT CIRCULAR DATED 08.08.2019, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND HAS TO BE DISMISSED. 4. LD. DR FAIRLY CONCEDED THAT THE TAX EFFECT INVOL VED IN THE GROUNDS RAISED BY THE REVENUE IS BELOW RS.50,00,000 /- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FA CT THAT THE TAX EFFECT INVOLVED IN THE GROUNDS RAISED BY THE REVENUE IS BE LOW RS.50,00,000/-. WE FIND THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF DINESH MADHAVLAL PATEL (SUPRA) AFTER CONSI DERING THE CBDT CIRCULAR DATED 08.08.2019, HAS HELD THAT THE SAID CIRCULAR IS APPLICABLE TO THE PENDING APPEALS IN ADDITION TO TH E APPEALS TO BE FILED ITA NO:- 6371/DEL/2015 (ASSESSMENT YEAR: 2006-07) PAGE | 4 HENCEFORTH. THE RELEVANT PORTION OF THE ORDER FROM PARA 5 TO 9 READS AS UNDER:- 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND HAV ING PERUSED THE MATERIAL ON RECORD, WE DO NOT HAVE SLIGHTEST OF HESITATION IN HOLDING THAT THE CONCESSION EXTENDED BY THE CBDT NO T ONLY APPLIES TO THE APPEALS TO BE FILED IN FUTURE BUT IT IS ALSO EQUALLY APPLICABLE TO THE APPEALS PENDING FOR DISPOSAL AS O N NOW. OUR LINE OF REASONING IS THIS. THE CIRCULAR DATED 8TH A UGUST 2019 IS NOT A STANDALONE CIRCULAR. IT IS TO BE READ IN CONJ UNCTION WITH THE CBDT CIRCULAR NO 3 OF 2018 (AND SUBSEQUENT AMENDMEN T THERETO), AND ALL IT DOES IS TO REPLACE PARAGRAPH NOS. 3 AND 5 OF THE SAID CIRCULAR. THIS IS EVIDENT FROM THE FOLLOWING EXTRAC TS FROM THE CIRCULAR DATED 8 TH AUGUST 2019: 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATI ON. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME-TAX CASES BE ENHANCED F URTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTION ED ABOVE AND ACCORDINGLY. THE TABLE FOR MONETARY LIMIT S SPECIFIED IN PARA 3 OF THE CIRCULAR SHALL READ AS F OLLOWS: 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 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FILING OF APPEALS IN SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGH ER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS- A-VIS WHERE COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITU TED BY THE FOLLOWING PARA: ITA NO:- 6371/DEL/2015 (ASSESSMENT YEAR: 2006-07) PAGE | 5 5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX E FFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF I N THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN M ORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RE SPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFE CT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RE SPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. FURTHE R, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CAS E WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARAT ELY. 4. THE SAID MODIFICATIONS SHALL COME INTO EFFECT FR OM THE DATE OF ISSUE OF THIS CIRCULAR. 6. CLEARLY, ALL OTHER PORTIONS OF THE CIRCULAR NO. 3 OF 2018 (SUPRA) HAVE REMAINED INTACT. THE PORTION WHICH HAS REMAINE D INTACT INCLUDES PARAGRAPH 13 OF THE AFORESAID CIRCULAR WHI CH IS AS FOLLOWS: 13. THIS CIRCULAR WILL APPLY TO SLPS/ APPEALS/ CROS S OBJECTIONS/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTI VELY TO PENDING SLPS/ APPEALS/ CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN P ARE 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. ITA NO:- 6371/DEL/2015 (ASSESSMENT YEAR: 2006-07) PAGE | 6 7. IN VIEW OF THE ABOVE DISCUSSIONS, WE HEREBY HOLD THAT THE RELAXATION IN MONETARY LIMITS FOR DEPARTMENTAL APPE ALS, VIDE CBDT CIRCULAR DATED 8TH AUGUST 2019 (SUPRA) SHALL B E APPLICABLE TO THE PENDING APPEALS IN ADDITION TO THE APPEALS T O BE FILED HENCEFORTH. 8. LEARNED COMMISSIONER (DR) THEN SUBMITS LIBERTY M AY KINDLY BE GIVEN TO POINT OUT, UPON NECESSARY FURTHER VERIF ICATIONS, AND TO SEEK RECALL THE DISMISSAL OF APPEALS AND RESTORATIO N OF THE APPEALS IN THE CASES (I) IN WHICH IT CAN BE DEMONST RATED THAT THE APPEALS ARE COVERED BY THE EXCEPTIONS, AND (II) WHI CH ARE INADVERTENTLY INCLUDED IN THIS BUNCH OF APPEALS, WH EREIN THE TAX EFFECT, IN TERMS OF THE CBDT CIRCULAR (SUPRA), EXCE EDS RS 50,00,000. NONE OPPOSES THIS PRAYER; WE ACCEPT THE SAME. WE MAKE IT CLEAR THAT THE APPELLANTS SHALL BE AT LIBER TY TO POINT OUT THE CASES WHICH ARE WRONGLY INCLUDED IN THE APPEALS SO SUMMARILY DISMISSED, EITHER OWING TO WRONG COMPUTAT ION OF TAX EFFECT OR OWNING TO SUCH CASES BEING COVERED BY THE PERMISSIBLE EXCEPTIONS- OR FOR ANY OTHER REASON, AND WE WILL TA KE APPROPRIATE REMEDIAL STEPS IN THIS REGARD. 9. IN THE LIGHT OF THE ABOVE DISCUSSIONS, ALL THE A PPEALS STAND DISMISSED AS WITHDRAWN. AS THE APPEALS FILED BY THE REVENUE ARE FOUND TO BE NON-MAINTAINABLE AND AS ALL THE REL ATED CROSS- OBJECTIONS OF THE ASSESSEE ARISE ONLY AS A RESULT O F THOSE APPEALS AND MERELY SUPPORT THE ORDER OF THE CIT(A), THE CRO SS OBJECTIONS FILED BY THE ASSESSEE ARE ALSO DISMISSED AS INFRUCT UOUS. ORDERED, ACCORDINGLY. 6. FOLLOWING THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS DINESH MADHAVLAL PATEL (CITED SUPRA), WE HOLD THAT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAI NABLE IN VIEW OF THE ITA NO:- 6371/DEL/2015 (ASSESSMENT YEAR: 2006-07) PAGE | 7 TAX EFFECT BEING BELOW RS.50,00,000/-. ACCORDINGLY , THE APPEAL FILED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DAY OF AUGUST, 2019. SD/- SD/- (S.KAMBLE) (R.K.PANDA) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 19.08.2019 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI