ASST CIT CC 1(3) , MUMBAI V. M/S POONAM HOME MAKERS , MUMBAI

ITA 770/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6926 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 30-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Keywords: Search and seizure; Tax effect
• Section: 143(3); 13; 22

Judgement Text

ACIT - CC 1(3), MUMBAI VS. M/S P.S CONSTRUCTION & ORS. ITA NOS. 769 - 770, 773 & 781/MUM/2020 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC - II MUMBAI BEFORE SHRI S. RIFAUR RAHMAN (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) ITA NO. 769/MUM/2020 ASSESSMENT YEAR 2011 - 12 ASST. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 1(3), MUMBAI, 905, 9 TH FLOOR, PRATISHTHA BHAWAN, OLD C.G.O BUILDING (ANNEXE), M.K ROAD, MUMBAI 400 020. PAN : AAKFP4348Q M/S P.S CONSTRUCTION, 66B, 3 RD FLOOR, PODDAR CHAMBERS, 22E SAYED ABDULLA BARELVI ROAD, FORT, MUMBAI 400 001. ITA NO. 7 81 & 773 /MUM/2020 ASSESSMENT YEAR (S): 2010 - 11 & 2013 - 14 ASST. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 1(3), MUMBAI, 905, 9 TH FLOOR, PRATISHTHA BHAWAN, OLD C.G.O BUILDING (ANNEXE), M.K ROAD, MUMBAI 400 020. PAN : AALFP2813M M/S POONAM PROPERTIES, 66 B, 3 RD FLOOR, PODDAR CHAMBERS, 22E SAYED ABDULLA BARELVI ROAD, FORT, MUMBAI 400 001 ITA NO. 7 70 /MUM/2020 ASSESSMENT YEAR 2011 - 12 ASST. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 1(3), MUMBAI, 905, 9 TH FLOOR, PRATISHTHA BHAWAN, OLD C.G.O BUILDING ( ANNEXE), M.K ROAD, MUMBAI 400 020. PAN : AAKFP4348Q M/S POONAM HOME MAKERS, 66B, 3 RD FLOOR, PODDAR CHAMBERS, 22E SAYED ABDULLA BARELVI ROAD, FORT, MUMBAI 400 001 ASSESSEE BY : SHRI PRATEEK JAIN , A .R REVENUE BY : SHRI SANJAY J. SETHI DATE OF HEARING : 03 /0 8 /2021 D ATE OF PRONOUNCEMENT : 03 /0 8 /2021 ACIT - CC 1(3), MUMBAI VS. M/S P.S CONSTRUCTION & ORS. ITA NOS. 769 - 770, 773 & 781/MUM/2020 2 ORDER PER RAVISH SOOD, J.M: THE CAPTIONED APPEAL S FILED BY THE REVENUE ARE DIRECTED AGAINST THE RESPECTIVE ORDER S PASSED BY THE CIT(A) - 47 , MUMBAI, DATED 08.11.2019, WHICH IN TURN ARISES FROM THE ORDER S PASSED BY THE AO U/S 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961, (FOR SHORT ACT), DATED 18.03.2016. AS THE TAX EFFECT INVOLVED IN ALL THE AFOREMENTIONED RESPECTIVE APPEALS IS BELOW THE MONETARY LIMIT PRESCRIBED BY THE CBDT FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE THE TRIBUNAL, VIDE ITS CIRCULAR NO. 17/2019, DATED 08.08.2019 R.W CIRCULAR NO. 3.20 18, DATED 11.07.2018 , THEREFORE, THE SAME ARE BEING TAKEN UP AND DISPOSED OFF BY WAY OF A CONSOLIDATED ORDER. 2. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE AT THE VERY OUTSET ASSAILED THE MAINTAINABILITY OF THE AFORE SAID AP PEALS FILED BY THE REVENUE. IT WAS SUBMITTED BY THE LD. A.R THAT AS THE TAX EFFECT INVOLVED IN ALL THE SAID APPEALS WAS BELOW THE MONETARY CEILING OF RS. 50 LAC PROVIDED IN THE CBDT CIRCULAR NO. 17/2019, DATED 08./08.2019 R.W CIRCULAR NO. 3.2018, DATED 1 1.07.2018, THEREFORE, THE SAME ON THE SAID COUNT ITSELF WERE NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. 3. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) REBUTTED THE AFORESAID CONTENTION OF THE LD. A.R. IT WAS SUBMITTED BY THE LD. D.R THAT THE AFORESAID CONTENTION OF THE ASSESSEES COUNSEL WAS BASED ON MISCONCEIVED FACTS. ELABORATING ON HIS SAID CONTENTION, IT WAS SUBMITTED BY THE LD. D.R THAT THOUGH THE TAX EFFECT INVOLVED IN THE PRESENT APPEALS WAS ADMITTEDLY BELOW THE MONETARY CEI LING CONTEMPLATED IN THE CBDT CIRCULAR NO. 17 OF 2019, DATED 08.08.2019, HOWEVER, THE SAID APPEALS WERE SAVED BY THE EXCEPTION CARVED OUT IN PARA (E) OF THE CBDT CIRCULAR NO. 3/2018, DATED 11.07.2018 , AND THUS , MAINTAINABLE. IN ORDER TO BUTTRESS HIS AFORES AID CLAIM , IT WAS SUBMITTED BY THE LD. D.R THAT AS THE ADDITIONS IN ALL THE AFOREMENTIONED APPEALS WAS BASED ON T H E INFORMATION THAT WAS RECEIVED BY THE A.O FROM THE DDIT(INV.), UNIT IX(2), MUMBAI THAT THE ASSESSEE AS A BENEFICIARY HAD OBTAINED ACCOMMODATI ONS LOANS FROM CERTAIN BENAMI CONCERNS OF SHRI. BHANWARLAL JAIN, AN INFAMOUS ACCOMMODATION ENTRY PROVIDER , THEREFORE, THE SAME WOULD SAFELY FALL WITHIN THE REALM OF INFORMATION THAT WAS RECEIVED FROM AN EXTERNAL SOURCE AS PROVIDED IN THE EXCEPTION CONTEMPL ATED IN PARA (E) OF THE CBDT CIRCULAR NO. 3/2018, DATED 11.07.2018. IN ORDER TO DRIVE HOME HIS AFORESAID CLAIM, IT WAS SUBMITTED BY THE LD. D.R THAT THE AUTHORITIES LISTED IN THE EXCEPTION CARVED OUT IN PARA (E) OF CIRCULAR NO. 3/2018, DATED 11.07.2018 WERE NOT EXHAUSTIVE. ALSO, THE LD. D.R IN ORDER TO FORTIFY HIS AFORESAID CONTENTION HAD DRAWN SUPPORT FROM THE SCHEDULE II OF THE RIGHT TO INFORMATION ACT, 2005 (NO. 22 OF 2005). ACIT - CC 1(3), MUMBAI VS. M/S P.S CONSTRUCTION & ORS. ITA NOS. 769 - 770, 773 & 781/MUM/2020 3 4. REBUTTING THE AFORESAID CONTENTIONS OF THE REVENUES COUNSEL , IT WAS SUBMITTED BY THE LD. A.R THAT AS THE DDIT(INVESTIGATION) OF THE INCOME - TAX DEPARTMENT IS AN INTERNAL WING OF THE DEPARTMENT, THEREFORE, IT WAS ABSOLUTELY INCORRECT ON THE PART OF THE LD. D.R TO CANVASS THAT THE INFORMATION RECEIVED BY THE A.O FROM THE SAI D WING WOULD FALL WITHIN THE SCOPE AND GAMUT OF INFORMATION RECEIVED FROM AN EXTERNAL AGENCY. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. C ENTRAL BOARD OF DIRECT TAXES ( CBDT) VIDE CIRCULAR NO. 17/2019 DATED 08.08.2019 HAS AMENDED CIRCULAR NO. 3/2018 DATED 11.07.2018 FOR FURTHER ENHANCEMENT OF MONETARY LIMIT FOR FILING OF APPEALS BY THE D EPARTMENT BEFORE THE ITAT, HIGH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT AS MEASUR ES FOR REDUCING LITIGATION. 6 . CBDT VIDE CIRCULAR NO. 3/2018 DATED 11.07.2018 HAS SPECIFIED THAT APPEALS SHALL NOT BE FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL (ITAT) IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY LIMIT OF RS.20,00,000/ - . FOR THIS PURPOSE, TAX EFFECT MEANS THE DIFFERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED. FURTHER, TAX EFFECT SHALL BE TAXES INCLUDING APPLICABLE SURCHARGE AND CESS. HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE THE CHARGEABILITY OF INTEREST IS THE ISS UE UNDER DISPUTE, THE AMOUNT OF INTEREST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDER, THE TAX EFFECT WILL MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APPEALED AGAINST. AT PARA 13 OF THE ABOVE CIRCULAR, IT HAS BEEN MENTIONED THAT: 13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS OBJECTION/REFERENCES TO BE FILED HENCEFORTH IN SC/HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. 7 . AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATION, CBDT VIDE CIRCULAR NO. 17/2019 HAS FIXED THE MONETARY LIMIT FOR FILING OF APPEALS BEFORE ITAT AT RS.50,00,000/ - . 8 . IN THE PRESENT APPEAL S FILED BY THE DEPARTMENT THE TAX EFFECT INVOLVED IN ALL THE SAID APPEALS IS ADMITTEDLY BELOW THE MONETARY LIMIT OF RS.50,00,0 00/ - . AS REGARDS THE CLAIM OF THE LD. D.R, THAT THOUGH THE TAX EFFECT INVOLVED IN ALL THE PRESENT APPEAL S IS BELOW THE MONETARY CEILING PROVIDED FOR FILING OF AN APPEAL BEFORE THE TRIBUNAL AS PER CBDT CIRCULAR NO. 17 OF 2019, DATED 08.08.2019, HOWEVER, A S THE ACIT - CC 1(3), MUMBAI VS. M/S P.S CONSTRUCTION & ORS. ITA NOS. 769 - 770, 773 & 781/MUM/2020 4 ADDITIONS MADE IN ALL THE SAID APPEALS WAS BASED ON THE INFORMATION RECEIVED FROM DDIT(INVESTIGATION), MUMBAI I.E AN EXTERNAL SOURCE, THEREFORE, THEY WERE COVERED BY THE EXCEPTION CARVED OUT IN PARA (E) OF CIRCULAR NO. 3/2018, DATED 11.07.2018 , WE A RE AFRAID THAT THE SAME DOES NOT FIND FAVOR WITH US. ADMITTEDLY, THE CBDT VIDE ITS CIRCULAR NO. 3/2018, DATED 11.07.2018 HAD CARVED OUT CERTAIN EXCEPTIONS WHICH OVERRIDE THE NON - MAINTAINABILITY OF AN APPEAL FILED BY THE REVENUE INVOLVING TAX EFFECT BELOW THE PRESCRIBED MONETARY CEILING. HOWEVER, WE FIND THAT THE EXCEPTION CARVED OUT IN PARA 10(E) OF THE CBDT CIRCULAR NO. 3/2018, DATED 11.07.2018 , AS HAD BEEN RELIED UPON BY THE LD. D.R , WOULD NOT COME TO THE RESCUE OF THE REVENUE INSOFAR THE APPEAL S IN QUESTION ARE CONCERNED. EXCEPTION CARVED OUT IN PARA 10(E) ENVISAGES SUCH CASES WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM CERTAIN SPECIFIED EXTERNAL SOURCES, AND THE SAME READS AS UNDER: 10(E). WHERE ADDITION IS BASED ON INFORMATION RECEIV ED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GSC INTELLIGENCE (DGGI). HOWEVER, AS STATED BY THE LD. A.R, AND RIGHTLY SO, AS THE ADDITION S THAT FORMS THE SUBJECT MATTER OF ALL THE CAPTION ED APPEALS I S BASED ON THE INFORMATION RECEIVED BY THE A.O FROM THE INVESTIGATION WING OF THE INCOME - TAX DEPARTMENT, MUMBAI, THEREFORE, THE SAME WOULD NOT FALL WITHIN THE MEANING OF EXTERNAL SOURCES AS HAD BEEN SPECIFIED IN PARA 10(E) OF THE CBDT CIRCULA R NO. 3/2018, DATED 11.07.2018. ACCORDINGLY, NOT BEING PERSUADED TO ACCEPT THE AFORESAID CLAIM OF THE REVENUE THAT THE CAPTIONED APPEALS OF THE REVENUE ARE COVERED BY THE EXCEPTION CARVED OUT IN PARA 10(E) OF THE CBDT CIRCULAR NO.3/2018, WE REJECT THE SAME . 9 . RESULTANTLY, IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS THE PRESENT APPEAL S INVOLVING A TAX EFFECT OF LESS THAN RS.50 LAC , IN EACH CASE, ARE ACCORDINGLY DISMISSED. ORDER PRON OUNCED IN THE OPEN COURT ON 03 /0 8 /2021. SD/ - SD/ - ( S. RIFAUR RAHMAN ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 03 /0 8 /2021 **PS: ROHIT ACIT - CC 1(3), MUMBAI VS. M/S P.S CONSTRUCTION & ORS. ITA NOS. 769 - 770, 773 & 781/MUM/2020 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY)