ITO 4(2)(4), MUMBAI V. LOVELY FAB PRINT P.LTD, MUMBAI

MA 08/MUM/2021

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0020 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-03-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 05-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURBINDER SINGH
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , A BENCH MUMBAI BEFORE : SHRI MAHAVIR SINGH, VP & SHRI M.BALAGANESH, AM MA NO.08/MUM/2021 (ARISING OUT OF ITA NO. 3678/ MUM/ 20 17 ) ( ASSESSMENT YEAR : 20 09 - 10 ) INCOME TAX OFFICER 4(2)(4) R.NO.644, 6 TH FLOOR AAYAKAR BHAVAN M.K.ROAD, MUMBAI 400 020 VS. M/S. LOVELY FAB PRINT PVT.LTD., 16, 2 ND FLOOR, ROOM NO.26, ANANTWADI, BHULESHWAR, MUMBAI 400 002 PAN/GIR NO. AABCL4588N (APPELLANT ) .. (RESPONDENT ) REVENUE BY SHRI GURBINDER SINGH ASSESSEE BY NONE DATE OF HEARING 05 / 03 /202 1 DATE OF PRONOUNCEMENT 05 / 03 /202 1 / O R D E R PER M. BALAGANESH (A.M) : BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, REVENUE SEEKS TO RECALL THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO.3678/MUM/2 017 DATED 23/09/2019 WHEREIN THE APPEAL OF THE REVENUE WAS DISMISSED AS NOT MAINTAINABLE BY FOLLOWING THE CBDT CIRCULAR NO.17/2019 DATED 08/08/2019 WHICH PRESCRIBED MONETARY LIMITS FOR PREFERRING THE APPEALS BEFORE THIS TRIBUNAL BY THE REVENUE. M A NO . 08/MUM/2021 M/S. LOVELY FAB POINT PVT. LTD., 2 2. WE FIN D THAT THIS TRIBUNAL WHILE DISMISSING THE APPEAL OF THE REVENUE ON THE GROUND THAT THE TAX EFFECT INVOLVED ON THE DISPUTED ISSUES WAS LESS THAN THE PRESCRIBED MONETARY LIMIT FOR FILING OF APPEAL, HAD INDEED GIVEN LIBERTY TO THE REVENUE THAT IN CASE IF THE REVENUE IS ABLE TO PROVIDE EVIDENCE THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN CIRCULAR ISSUED BY THE CBDT, THIS APPEAL WOULD GET RECALLED ON A MISCELLANEOUS APPLICATION PREFERRED BY THE REVENUE . HOWEVER, FROM THE GROUND MENTIONED IN THE M ISCELLANEOUS APPLICATION AND DURING THE COURSE OF ARGUMENTS MADE BY THE LD. DR BEFORE US, WE FIND THAT NO CASE WAS MADE OUT BY THE REVENUE TO PROVE THAT WHETHER THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE TAX EFFECT CIRCULAR. WE FIND THAT TH E LD. DR MERELY ARGUED THAT ASSESSEE WAS IN RECEIPT OF SHARE APPLICATION MONEY TO THE EXTENT OF RS.1,02,90,000/ - DURING THE YEAR UNDER CONSIDERATION WHICH INFORMATION WAS SOUGHT FROM THE REGISTRAR OF COMPANIES (ROC). ACCORDING TO THE LD. DR, THIS INFORMATI ON RECEIVED FROM ROC WOULD TANTAMOUNT TO THE INFORMATION RECEIVED FROM EXTERNAL AGENCIES AND HENCE, IT FALLS UNDER THE EXCEPTIONS PROVIDED IN THE CIRCULAR. WE ARE NOT INCLINED TO AGREE TO THIS ARGUMENT ADVANCED BY THE LD. DR FOR THE SIMPLE REASON THAT EVER Y COMPANY WOULD RECEIVE EITHER THE SHARE CAPITAL OR SHARE APPLICATION MONEY AND THE SAME WOULD GET REFLECTED IN THE BALANCE SHEET OF EVERY COMPANY. SINCE EVERY COMPANY WOULD BE FILING ITS ANNUAL RETURNS BEFORE THE ROC, THE FACT OF RECEIPT OF SHARE CAPITAL / SHARE APPLICATION MONEY WOULD GET AUTOMATICALLY REFLECTED IN THE SAID ANNUAL RETURNS AND THE BALANCE SHEETS FILED WITH ROC, THERE WOULD BE NO SCOPE FOR ROC TO PASS ON ANY INFORMATION WITH REGARD TO THE INCOME TAX DEPARTMENT. IF THIS ARGUMENT OF THE LD. D R NEEDS TO BE ACCEPTED, THEN EVERY CORPORATE CASE HAVING SHARE CAPITAL AND SHARE APPLICATION MONEY WOULD BE FALLING UNDER THIS AMBIT WHEREIN ANY CASE WHICH IS DISMISSED ON ACCOUNT OF LOW TAX EFFECT WOULD GET RECALLED BECAUSE ROC HAS GIVEN THAT M A NO . 08/MUM/2021 M/S. LOVELY FAB POINT PVT. LTD., 3 INFORMATION TO THE INCOME TAX DEPARTMENT. IN ANY CASE , WE FIND THAT THE LD. DR BEFORE US WAS NOT ABLE TO PRODUCE ANY EVIDENCE EVEN AS TO THE FACT WHETHER ANY INFORMATION W AS RECEIVED FROM ROC. MERELY BECAUSE ANY INFORMATION IS RECEIVED FROM ROC, IT CANNOT BE AUTOMATIC ALLY TAXED IN THE HANDS OF THE ASSESSEE COMPANY. WHAT IS THE BASIS OF INFORMATION RECEIVED NEED TO BE EXAMINED AND THE LD. AO IS DUTY BOUND TO INDEPENDENTLY EXAMINE THE SAME BY MAKING NECESSARY ENQUIRIES. NO EVIDENCE IN ANY MANNER WHATSOEVER HAS BEEN PRODU CED AT THE BEHEST OF THE REVENUE IN THIS REGARD. HENCE, WE DISMISS THE MISCELLANEOUS APPLICATION PREFERRED BY THE REVENUE. 3. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 05 / 03 /202 1 . SD/ - ( MAHAVIR SINGH ) SD/ - (M.BALAGANESH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 05 / 03 / 2021 KARUNA , SR.PS M A NO . 08/MUM/2021 M/S. LOVELY FAB POINT PVT. LTD., 4 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDE NT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//