Income Tax Officer, Ward-2(2), Jaipur V. M/s. Vanijya Impex Private Limited, Jaipur

ITA 739/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3720 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: ISHA KANOONGO DHK
• Keywords: Unexplained cash credit; Tax effect
• Section: 56(2); 148; 56

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 739/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. THE INCOME TAX OFFICER, WARD -2(2), JAIPUR. CUKE VS. M/S. VANIJYA IMPEX PRIVATE LTD., B-17A, JAIPUR TOWER, OPP. ALL INDIA RADIO. JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AABCV 5121 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT C.O. NO. 21/JP/2018 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 739/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. M/S. VANIJYA IMPEX PRIVATE LTD., B-17A, JAIPUR TOWER, OPP. ALL INDIA RADIO. JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD -2(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AABCV 5121 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : MS. ISHA KANOONGO (ADVOCATE) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06.08.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 07/08/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 23.03.2017 OF LD. CIT (A)-I, JAIPUR FOR THE ASSESSMENT YEAR 2009- 10. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (APPEALS)-I, JAIPUR HAS ERRED IN :- 2 ITA NO. 739/JP/2018 M/S. VANIJYA IMPEX PVT LTD., JAIPUR. 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN DELETIN G THE ADDITION OF RS. 64,35,000/- MADE BY THE AO ON ACCOU NT OF UNEXPLAINED CREDIT OF SHARE PREMIUM? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT (A) WAS NOT JUSTIFIED IN IGN ORING THE FACT THAT THE ASSESSEE HAS DECLARED SHARE APPLICATI ON MONEY RECEIPT IN BALANCE SHEET FOR F.Y. 2008-09 RELEVANT TO A.Y. 2009-10? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT (A) WAS NOT JUSTIFIED TO APP RECIATE THE FACTS THAT THE ASSESSEE HAS CREDITED THE SHARE APPL ICATION MONEY DURING A.Y. 2009-10 (IN BALANCE SHEET)? 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT (A) WAS NOT JUSTIFIED IN IGN ORING THE FACTS THAT THE ASSESSEE HAS NOT FILED BANK STATEMEN T AND CONFIRMATIONS OF SHARE APPLICATION MONEY/SHARE PREM IUM RECEIVED DURING ASSESSMENT PROCEEDINGS ? 2. THE DISPUTE IN THIS APPEAL OF THE REVENUE IS REG ARDING THE DELETION OF ADDITION OF RS. 64,35,000/- MADE BY THE AO ON ACCOUNT OF UNE XPLAINED CREDIT OF SHARE PREMIUM. ADMITTEDLY THE TAX EFFECT IN THE REVENUE S APPEAL IS NOT EXCEEDING THE LIMIT OF RS. 20 LACS AS PER CBDT CIRCULAR NO. 3 OF 2018. 2.1. THE LD. D/R HAS FAIRLY SUBMITTED THAT THE TAX EFFECT INVOLVED IN THE REVENUES APPEAL IS LESS THAN 20 LACS WHICH IS PRESCRIBED THR ESHOLD LIMIT IN TERMS OF THE CBDT CIRCULAR NO. 3/2018 DATED 11 TH JULY, 2018 ISSUED IN SUPERSESSION OF ITS EARLIER C IRCULAR NO. 21 OF 2015 DATED 10.12.2015. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE DEMAND/ TAX EFFECT IN THE REVENUES APPEAL IN QUESTION IS BELOW RS. 20.00 LACS . UNDER THE POWERS VESTED BY SECTION. 268A(1) OF THE I T ACT, CBDT HAS RECENTLY ISSUED CIRCULAR NO. 3/2018 DATED 11 TH JULY, 3 ITA NO. 739/JP/2018 M/S. VANIJYA IMPEX PVT LTD., JAIPUR. 2018 (F NO. 279/MISC. 142/2007-ITJ(PT) INSTRUCTING THE AUTHORITIES BELOW THAT DEPARTMENTAL APPEAL SHOULD NOT BE FILED BEFORE ITAT WHERE THE DEMAND/TAX EFFECT DOES NOT EXCEED RS. 20 LACS. THE CIRCULAR IS SPECIFICALLY MENTIONED TO BE APPLICABLE FOR ALL PENDING APPEALS. 4. SUBJECT TO SOME EXCEPTIONS, IT IS FURTHER DIREC TED BY CBDT THAT ALL THE DEPARTMENTAL APPEALS PENDING BEFORE ITAT WHERE THE DEMAND/TAX EFFECT IS NOT EXCEEDING THAN 20 LACS SHOULD BE EITHER WITHDRAWN O R NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVES. 5. THE PRESENT APPEAL IS NOT COVERED BY ANY EXCEPT IONS MENTIONED IN THE SAID CBDT CIRCULAR. SINCE THE TAX DEMAND IN DISPUTE IN THIS DEPARTMENTAL APPEAL IS BELOW THE LIMIT SET OUT BY CBDT FOR THE APPEAL, THE APPEA L OF THE ASSESSEE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 3 OF 2018 DATED 11.07.2018. ACCORDINGLY THE APPEAL OF THE DEPARTMENT IS DISMISSED AS NOT PR ESSED/WITHDRAWN. CROSS OBJECTION NO. 21/JP/2018. THE ASSESSEE HAS FILED THE CROSS OBJECTION BY RAIS ING THE FOLLOWING GROUNDS :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE A SSESSING OFFICER IN PASSING THE ORDER U/S 148/144 OF THE INC OME TAX ACT, 1961 WHICH IS AB-INITIO VOID, THERE BEING NO SERVIC E OF NOTICE U/S 148 OF THE INCOME TAX ACT, 1961. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN PASSING THE ASSESSMENT ORDER PASSED BY THE ASSESSIN G OFFICER U/S 148/144 OF THE INCOME TAX ACT, 1961 IS BAD IN L AW AS THE SAME HAS BEEN PASSED WITHOUT SERVING NOTICE U/S 143 (2). 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE A SSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 148/144 OF THE INCOME TAX ACT, 1961 IS BAD IN LAW AS THE SAME HAS BEEN PASSED WITHOUT FURNISHING REASONS FOR ISSUING NOTICE U/S 148 DESPI TE REQUEST BY THE ASSESSEE UNDER LETTER DATED 28.04.2016 & 18.11. 2016. 4 ITA NO. 739/JP/2018 M/S. VANIJYA IMPEX PVT LTD., JAIPUR. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE O BSERVATIONS OF THE LEARNED ASSESSING OFFICER REGARDING APPLICABILI TY OF SECTION 56(1) & 56(2) OF THE INCOME TAX ACT, 1961 ARE IRREL EVANT AND NON-EXISTENT. THE PROVISIONS OF SECTION 56 ARE NOT APPLICABLE TO THE FACTS OF THE CASE EVEN DISTANTLY. 5. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD, AMEN D OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF H EARING. 6. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED AT BAR THAT AS THE ASSESSEE DOES NOT WANT TO PRESS THE CROSS OBJECTION ON THE GROUND THAT THE APPEAL OF THE REVENUE BEING NOT MAINTAINABLE ON ACCOUNT OF TAX LI MIT NOT EXCEEDING RS. 20 LACS AS PER THE CBDT CIRCULAR NO. 3/2018 DATED 11 TH JULY, 2018 AND IS DISMISSED, THEREFORE, THE CROSS OBJECTION OF THE ASSESSEE MAY BE DISMISSED AS NOT P RESSED. ACCORDINGLY, THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED BEING NOT PR ESSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/0 8/2018. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 07/08/2018. DAS/ 5 ITA NO. 739/JP/2018 M/S. VANIJYA IMPEX PVT LTD., JAIPUR. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE INCOME-TAX OFFICER, WARD 2(2) , JAIPUR. 2. THE RESPONDENT M/S. VANIJYA IMPEX PVT. LTD., JA IPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 739/JP/2018 & CO NO. 21/JP/2 018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 ITA NO. 739/JP/2018 M/S. VANIJYA IMPEX PVT LTD., JAIPUR.