ITO, WARD-1(4), ALWAR V. SMT. ASHU KHANDELWAL, ALWAR

ITA 99/JPR/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7232 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 22-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: 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 “B”, JAIPUR Jh ,u-ds-lSuh] mik/;{k ,oa Jh lanhi x®lkÃa] U;kf;d lnL; ds le{k BEFORE: SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANDEEP GOSAIN, JM vk;dj vihy la-@ITA No. 99/JP/2020 fu/kZkj.k o"kZ@Assessment Year :2019-20 Income Tax Officer, Ward 1(4), Alwar. cuke Vs. Smt. Ashu Khandelwal, 138, Scheme No. 2, Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACVPK 5646 F vihykFkhZ@Appellant izR;FkhZ@Respondent jktLo dh vksj ls@ Revenue by : Smt. Runi Pal (Addl.CIT) fu/kZkfjrh dh vksj ls@ Assessee by : None lquokbZ dh rkjh[k@ Date of Hearing : 30/11/2021 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 30/11/2021 vkns'k@ ORDER PER: N.K. SAINI, VICE PRESIDENT This is an appeal by the Revenue against the order dt. 12/03/2019 of the Ld. CIT(Alwar). 2. Following grounds have been raised in this appeal. 1. Whether on the facts and circumstances of the case and in law, the CIT(A) justified in deleting the addition of Rs. 47,72,412/- made by the Assessing officer 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. Whether on the facts and circumstances of the case and in law, the CIT(A) justified in deleting the addition of Rs. 2,38,621/- made by the Assessing officer on account of unexplained expenditure from undisclosed sources in making payment of commission for obtaining entries of Bogus Long Term Capital Gain in Penny Stock”. ITA 99/JP/2020_ ITO Vs Smt. Ashu Khandelwal 2 3. The Registry has pointed out that the appeal of the Revenue is barred by limitation by 230 days. The department moved an application for condonation of delay stating therein as under: “Kindly refer to the above mentioned subject. In this connection, it is requested that department has not filed the second appeal before your honour as the tax effect in the case involves is below the monitory limit fixed for filling the second appeal .But as per CBDT Circular vide No.23/2019 dated 06-09-2019 has decided the monetary limits for filing of appeal before ITAT, HC and Supreme courts will not be applicable in penny stock cases and appeals should be filed on merits on the case as an exception. The decision relied upon Hon'ble High court of Delhi in ITA 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 similar case. Hence, it is requested to kindly consider for condonation of delay to file appeal for A.Y. 2014-15 before your honour in the case.” During the course of hearing, the ld. Sr.DR reiterated the contents of the aforesaid application and requested to condone the delay. 4. No body was present on behalf of the assessee. 5. We have considered the submissions of ld. Sr.DR and perused the material available on record. In the present case, it appears that the department did not file the appeal in time by considering the fact that the tax effect involved was below the monetary limit fixed for not filing the appeal. However, subsequently, on the basis of Circular issued by the CBDT No. 23/2019 dated 06/09/2019, the appeal was filed, therefore, the delay in filing the appeal was beyond the control of the A.O.. In view of ITA 99/JP/2020_ ITO Vs Smt. Ashu Khandelwal 3 the said facts, the delay in filing the appeal is condoned and the appeal is admitted. 6. In this appeal, the assessee preferred immunity under Vivad Se Vishwas Scheme, 2020 and the A.O. in his report dated 13/08/2021 stated in respect of Smt. Ashu Khandelwal (assessee) as under: “03. Smt. Ashu Khandelwal (PAN-ACVPK5646F): The assessee has applied VsVs Scheme-2020 of the department on 10/12/2020. After verification the Pr.CIT-1, Jaipur has issued form No. 03 vide certificate No. 2350000580310121 dated 31/01/2021. The assessee has filed form No. 04 dated 13/03/2021 (copy enclosed). Due to updation of e-filing portal further form 05 could not be issued.” From the aforesaid notings of the A.O., it appears that the assessee deposited the due tax but Form No. 5 under Vivad Se Vishwas Scheme, 2020 could not be issued due to updation of e-filing portal. We, therefore, considering this fact that the assessee had adopted Vivad Se Vishwas Scheme which has been accepted by the department but due to updation of e-filing portal, Form No.5 in this case could not be issued, deem it appropriate to consider this appeal infructuous. In case it is found later on by the department that due taxes have not been deposited by the assessee, the department would be at liberty to request for recalling of this appeal. 7. In the result, this appeal of the department is dismissed. (Order pronounced on 30/11/2021) Sd/- Sd/- ¼lanhi x®lkÃa½ ¼,u-ds-lSuh½ (SANDEEP GOSAIN) (N.K. SAINI) U;kf;d lnL;@Judicial Member mik/;{k@Vice President Tk;iqj@Jaipur fnukad@Dated:- 30/11/2021 *Ranjan ITA 99/JP/2020_ ITO Vs Smt. Ashu Khandelwal 4 vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- The Income Tax Officer, Ward 1(4), Alwar. 2. izR;FkhZ@ The Respondent- Smt. Ashu Khandelwal, Alwar. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr¼vihy½@The CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 99/JP/2020) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar