INCOME TAX OFFICER 25(1)(2), MUMBAI V. SMITA ROHIT LUNKAR, MUMBAI

ITA 6727/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1444 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 28-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATI
• Keywords: Bogus purchase; Tax effect
• Section: 73; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.6727/MUM/2018(A.Y.2008-09) INCOME TAX OFFICER -25(1)(2), ROOM NO.403, 4 TH FLOOR, PRATYAKSH KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051 ...... APPELLANT VS. SMITA ROHIT LUNKAR, 211, AKSHAYA GIRIKUNJ, PALIRAM ROAD, ANDHERI (W), MUMBAI 400 058 PAN:AGNPB7005K ..... RESPONDENT APPELLANT BY : SHRI R. BHOOPATI RESPONDENT BY : SHRI RUTURAJ H. GU RJAR DATE OF HEARING : 13/12/2019 DATE OF PRONOUNCEMENT : 13/12/2019 ORDER PER VIKAS AWASTHY, JM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-53, (IN SHORT THE CIT(A) ), MUMBAI DATED 18/09/2019 FOR THE ASSESSMENT YEAR 2008-09. 2. SHRI RUTURAJ H. GURJAR, APPEARING ON BEHALF O F THE ASSESSEE SUBMITTED AT THE OUTSET THAT APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED ON ACCOUNT OF 2 ITA NO.6727/MUM/2018(A.Y.2008-09) LOW TAX EFFECT IN THE LIGHT OF RECENT CBDT CIRCUL AR NO.17/2019 DATED 08/08/2019. 3. SHRI R. BHOOPATI, REPRESENTING THE DEPARTMENT VEHEMENTLY OPPOSED THE CONTENTION OF THE LD. AUTHORIZED REPRES ENTATIVE OF THE ASSESSEE. THE LD.DEPARTMENTAL REPRESENTATIVE SUBMI TTED THAT THIS APPEAL IS COVERED BY EXCEPTIONS PROVIDED IN PARA-10 OF THE CBDT CIRCULAR NO.3/2018 DATED 11/07/2018. THE LD.DEPART MENTAL REPRESENTATIVE FURTHER POINTED THAT REASSESSMENT PR OCEEDINGS WERE INITIATED IN THE CASE OF ASSESSEE AFTER RECEIVING INFORMATION FROM DIRECTORATE OF INCOME TAX (INVESTIGATION) REGARDIN G ASSESSEES INVOLVEMENT IN BOGUS PURCHASES FROM HAWALA OPERATO RS. 4. CONTROVERTING THE SUBMISSIONS OF LD.DEPARTMENT AL REPRESENTATIVE, THE LD. AUTHORIZED REPRESENTATIVE O F ASSESSEE SUBMITTED THAT DIRECTORATE OF INCOME TAX (INVESTIGA TION) IS AN INTERNAL AGENCY/WING OF THE INCOME TAX DEPARTMENT AND HENCE, IS NOT COVERED BY EXCEPTIONS CONTAINED IN PARA-10 OF THE CBDT CIRC ULAR NO.3/2018 DATED 11/07/2018. IN SUPPORT OF HIS SUBMISSIONS TH E LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE PLACED RELIANCE ON T HE DECISION RENDERED IN THE CASE OF ITO VS. AMARCHAND P. SHAW R EPORTED AS 73 ITR(TRIBUNAL) 588(MUM-TRIB). 5. WE HAVE HEARD THE SUBMISSIONS MADE BY RIVAL SIDE S AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. WE HAVE A LSO CONSIDERED THE DECISION AND CBDT CIRCULAR ON WHICH RELIANCE HAS BEEN PLACED BY LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. 6. AFTER EXAMINING THE RECORDS WE OBSERVE THAT TH E TAX EFFECT INVOLVED IN THE APPEAL BY REVENUE IS LESS THAN RS.5 0.00 LACS. HENCE, THE APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED ON ACCOUNT OF LOW 3 ITA NO.6727/MUM/2018(A.Y.2008-09) TAX EFFECT IN LINE WITH RECENT CBDT CIRCULAR NO. 17/2019 DATED 08/08/2019. 7. IN SO FAR AS THE OBJECTION OF THE REVENUE THAT THE REOPENING WAS MADE ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTORATE OF INCOME TAX (INVESTIGATION) AND HENCE, THE PRESEN T APPEAL BY THE REVENUE FALLS IN THE EXCEPTIONS PROVIDED IN PARA-10 OF CBDT CIRCULAR NO.3/2018 DATED 11/07/2018, WE OBSERVE THAT THE CO- ORDINATE BENCH IN THE CASE OF ITO VS. AMARCHAND P. SHAH(SUPRA) HAS HELD THAT DIRECTORATE OF INCOME TAX (INVESTIGATION) IS NOT AN EXTERNAL SOURCE/AGENCY. IT IS A PART OF INCOME TAX DEPARTM ENT. THEREFORE, THE EXCEPTIONS PROVIDED IN PARA-10 OF THE CBDT CIRC ULAR(SUPRA) WOULD NOT GET ATTRACTED. THE LD.DEPARTMENTAL REPRESENTA TIVE HAS NOT BEEN ABLE TO CONTROVERT THE FINDINGS OF THE TRIBUNAL ON THIS ISSUE. 8. THUS, IN LIGHT OF THE FACTS AND THE DECISION OF TRIBUNAL IN THE CASE OF ITO VS. AMARCHAND P. SHAH(SUPRA), THE PRESE NT APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED ON ACCOUNT OF LOW TAX EFFECT. WE HOLD AND DIRECT ACCORDINGLY. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT AFTER HEARING OF THE APPEAL ON FRIDAY , THE 13 TH DAY OF DECEMBER, 2019. SD/- SD/- (R.C.SHARMA) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 13 /12/2019 VM , SR. PS(O/S)