ACIT, New Delhi V. M/s Moonigpa Finvest (P) Ltd., New Delhi

ITA 848/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87190 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 30-03-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 11-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Unexplained cash credit; Accommodation entries; Tax effect
• Section: 147; 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI C.M. GARG, JUDICIAL MEMBER ITA NO. 848 /DEL/201 1 AY: 2002 - 03 ACIT, CIRCLE 5(1) VS. M/S MOONIGPA FINVEST P.LTD. ROOM NO.409 A PLOT NO.7, VIKAS SURYA ARCADE C.R.BLDG., IP ESTATE CD BLOCK MARKET, PITAMPURA NEW DELHI NEW DELHI PAN: AA ACM 7528 G (APPELLANT) (RESPONDENT) APPELLANT BY : S H . P.DAMKANUNJNA, SR.D.R. RESPONDENT BY : NONE ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE REVENUE AGAINST T HE O RDER DATED 7.12.2010 OF LD.CIT(A) - VIII , NEW DELHI PERTAINING TO THE ASSESSMENT YEAR 2002 - 03 . 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THAT THE CI(A) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.10,00,000/ - MADE BY THE AO U/S 68 OF THE AC T BEING UNEXPLAINED CREDITS AND RS.10,000/ - BEING THE UNACCOUNTED CASH PAID FOR OBTAINING THE ACCOMMODATION ENTRIES. 2. THE LD.CIT(A) IGNORED THE FINDING RECORDED BY THE AO AND THE FACT THAT THE ASSESSEE DID NOT DISCHARGE THE ONUS OF PROVING THE EXISTENCE/ CREDIT WORTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTIONS, AND ALSO THE FACT THAT THE ASSESSEE IS INVOLVED IN THE BUSINESS OF OBTAINING ACCOMMODATION ENTRIES. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN CONCLUDING THAT THE PROCEEDINGS U/S 147 WERE NOT PROPERLY INITIATED. 3.1. THE LD.CIT(A) IGNORED THE FACT THAT THE PROCEEDINGS U/S 147/148 OF THE ACT WERE INITIATED AFTER FOLLOWING THE DUE PROCESS LAID DOWN BY THE LAW. ITA NO. 848/DEL/2011 MOONIGPA FINVEST P.LTD. A.Y. 2002 - 03 2 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 3. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. WE HAVE HEARD SHRI P.DAMKANUNJNA, LD.S.R. ON BEHALF OF THE REVENU E. ON A QUERY FROM THE BENCH THE LD.D.R. VEHEMENTLY CONTENDED THAT THE TAX EFFECT IN THE CASE ON HAND IS MORE THAN THE LIMIT PRESCRIBED BY THE CBDT AT THE TIME OF FILING OF THE APPEAL AND THAT THE FRESH CIRCULAR OF THE CBDT CLEARLY MENTIONS THAT THE TA X EFFECT LIMIT OF RS.4 LAKHS IS PROSPECTIVE IN NATURE AND HENCE THE LIMITS PRESCRIBED IN THE CIRCULAR CANNOT BE APPLIED TO APPEALS FILED FOR THE EARLIER ASSESSMENT YEARS I.E. 1999 - 2000. IT CONTENDED THAT THE LIMIT APPLIES TO APPEALS FILED AFTER THE DATE O F THE CIRCULAR. 4 . AFTER HEARING THE LD.SR.D.R. AND PERUSING THE MATERIAL ON RECORD WE HOLD AS FOLLOWS . THE TRIBUNAL, IN THE CASE OF DCIT VS. SUSHILA SARAOGI (2014) (11) TMI 294 ITAT KOLKATA, AFTER CONSIDERING THE PRECEDENTS ON THE SUBJECT, HELD TH AT THE INSTRUCTION NO.5/14, ISSUED BY THE CBDT ON 10.7.2014 IS APPLICABLE TO THE PENDING APPEALS. THE TRIBUNAL FOLLOWED THE PROPOSITION LAID DOWN IN THE JUDGEMENTS OF VARIOUS HIGH COURTS, INCLUDING THE TWO JUDGEMENTS OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. M/S PS JAIN & CO. IN ITA 179/1991 DT. 2.8.2010 AND IN THE CASE OF CIT VS. DELHI RACE CLUB LTD. DT. 3.3.2011. WE RESPECTFULLY FOLLOW THE CO - ORDINATE BENCH ORDER. IN THE INSTANT CASES, AS THE TAX EFFECT BEING BELOW RS. 4 LACS, WE WIT HOUT GOING INTO THE ISSUE ON MERITS, DISMISS THE APPEALS OF THE REVENUE IN LIMINE AS NOT MAINTAINABLE. IT IS TO BE MENTIONED THAT THE LD. SR. DR WAS UNABLE TO POINT OUT ANY EXCEPTIONAL CIRCUMSTANCES, MENTIONED IN BOARD INSTRUCTION NO.5 OF 2014 THAT HAVE LE D TO FILING OF TH IS APPEAL, DESPITE THE FACT THAT THE MONETARY LIMIT BEING BELOW THE PRESCRIBED LIMIT. ITA NO. 848/DEL/2011 MOONIGPA FINVEST P.LTD. A.Y. 2002 - 03 3 5 . IN THE RESULT THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH, 2015. SD/ - SD/ - ( C.M. GARG ) ( J. SUDHAKAR REDDY ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 ST MARCH, 2015 MANGA COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR