ITO, WARD-1(3), ALWAR V. SHRI DAYA RAM AGARWAL, ALWAR

ITA 93/JPR/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5867 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 20-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Competent authority; Tax effect; Condonation of delay

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No.93/JP/2020 fu/kZkj.k o"kZ@Assessment Year : 2014-15 The ITO Ward- 1(3) Alwar cuke Vs. Shri Daya Ram Agarwal 10, Lakhanda Kua, Behind Old Power House, Alwar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACEPA 4628 C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri Dheeraj Borad, CA jktLo dh vksj ls@Revenue by: Shri A.S. Nehra, Addl. CIT lquokbZ dh rkjh[k@Date of Hearing : 24/03/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 29 /03/2022 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal by the Department is directed against the order of the ld. CIT(A), Alwar dated 18-01-2029 for the assessment year 2014-15 wherein the Department has raised the following grounds of appeal. 1. Whether on the facts and circumstances of the case and in law the ld. CIT(A) is justified in deleting addition of Rs. 19,59,783/- made by the AO on account of income from undisclosed sources routed through the entries of bogus Long Term Capital Gain in penny stock obtained by the assessee. 2 ITA No. 93/JP/2020 ITO, Ward- 1(3), Alwar vs Shri Daya Ram Gupta 2. Whether on the facts and circumstances of the case and in law the ld. CIT(A) is justified in deleting the addition of Rs. 97,989/- made by the on account of unexplained expenditure incurred from undisclosed sources in making payment of commission for obtaining entries of bogus Long Term Capital Gain in penny stock. 2. The hearing of the appeal was concluded through video conference by both the parties in view of the prevailing situation of Covid-19 Pandemic. 3.1 At the outset of hearing, the Bench observed that there is delay of 290 days in filing the appeal by the Department for which the ld. DR filed an application dated 16-01-2020 for condonation of delay with following prayers. ‘’......In this connection, it is requested that the department has not filed the second appeal before your honour as the tax effect in the case involves is below the monetary limit fixed for filing the second appeal. But as per CBDT Circular vide No. 23/2019 dated 6-06-2019 has decided the monetary limits for filing of appeal before ITAT, HC and Supreme Court will not be applicable in penny stock cases and appeals should be filed on merit on the case as an exception. The decision relied upon Hon'ble High Court of Delhi in ITA No.841/2019 dated 17-09-2019 and Hon'ble Supreme Court of India in SLP No.26867/2019 filed by the assessee is dismissed by the Hon'ble Supreme Court of India in similarly. Hence, it is requested to kindly consider for condonation of delay to file appeal for 2014-15 before your honour in this case.’’ 3 ITA No. 93/JP/2020 ITO, Ward- 1(3), Alwar vs Shri Daya Ram Gupta 3.2 During the course of hearing, the ld.AR of the assessee objected to departmental application for condonation of delay but prayed that Court may decide the issue as deem fit and proper in the case. 3.3 We have heard the rival contentions and perused the materials available on record. The prayer as mentioned above by the Department for condonation of delay of 290 days has merit and we concur with the submission of the Department. Thus the delay of 290 days in filing the appeal by the department is condoned. 4.1 Apropos Departmental grounds of appeal, the ld.AR of the assessee has stated at the Bar that the assessee has filed a petition under ‘’Vivaad Se Vishwas Scheme -2020 to settle the aforesaid matter before the competent authority. The relevant abstract of the written submission dated 23-03-2022 filed by the assessee is as under:- ‘’ ........it is respectfully submitted that the respondent assessee has submitted application on form no. 1 and 2 under Vivad Se Vishwas Scheme before the commissioner of Income Tax, Alwar under receipt number 529096670070920 on 07- 092020. Copy of application form no. 1 and 2 stands already filed before the Hon'ble bench on 08/09/2020. It is further submitted that the issue involved in this appeal is regarding taxability of LTCG arising from share transactions and rate of tax to be charged under provisions of VSV Act. The government has vide clarification bearing No. F.No. IT(A)/1/2020-TPL dated 23/03/2021 tried to resolve the issue by making reference to certain sections of the Income Tax Act. As a result corrected/amended form no. 3 is to be issued by the PCIT but no such revised/corrected form no 3 has been received. The assessee is pursuing the matter before the PCIT as well as jurisdictional AO and is hopeful to get early fresh form no. 3 from the PCIT possibly in current financial year ending 31/03/2022.’’ 4 ITA No. 93/JP/2020 ITO, Ward- 1(3), Alwar vs Shri Daya Ram Gupta The ld.AR of the assessee during the course of hearing further submitted that fresh Form No. 3 in the case of the assessee is about to issue by the ld. PCIT possibly in current financial year ending 31-03-2022. Thus the ld.AR of the assessee prayed that the present appeal filed by the Revenue needs to be withdrawn. 4.2 On the other hand, the ld. DR submitted that the Form No. 3 has not been issued by the competent authority till now and therefore, present appeal be kept in abeyance till Form No. 5 of the Vivad Se Vishwas Scheme is finalized/issued. However, the assessee has submitted application on Form No. 1 and 2 under Vivad Se Vishwas Scheme before the ld. CIT, Alwar to settle the issue in question and therefore, their intention is to settle the dispute. 4.3 After hearing both the parties and perusing the relevant records before us, we found that since the assessee has already opted for Vivad Se Vishwas Scheme and had placed on record Form No. 1 & 2. Therefore, considering the said action of assessee, the present appeal is dismissed as no cause of action has been left to maintain the present appeal. However, in case, at any stage, if it is brought to the notice of the Bench that the compromise between the parties has not been effected in accordance with that Scheme then in that eventuality, the Department will be at liberty to move appropriate application for calling the present order. 5 ITA No. 93/JP/2020 ITO, Ward- 1(3), Alwar vs Shri Daya Ram Gupta 5. In the result, the appeal filed by the Revenue is dismissed as withdrawn. Order pronounced in the open court on 29 /03/2022 Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 29 /03/2022 *Mishra vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- The ITO, Ward- 1(3), Alwar ,. 2. izR;FkhZ@ The Respondent- Shri Daya Ram Agarwal, Alwar . 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 93/JP/2020) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asstt. Registrar