ITO WARD - 2(5), Ghaziabad V. Vikas Mittal, Ghaziabad

MA 117/DEL/2020

AI Insights

The case involves a Misc. Application under section 254(2) of the Income Tax Act, initiated by the Revenue against the appellate order of the ITAT in ITA No.6837/Del/2019. The Revenue's application sought to recall the appellate order, arguing that the case involved penny stocks and bogus Long Term Capital Gain (LTCG), falling under the exceptions prescribed in the Board's Circular 23/2019. Additionally, it was contended that the first appellate order was passed without authority and jurisdiction. The assessee opposed the application, referencing a similar case where the Tribunal had dismissed a similar application. The Tribunal, aligning with its previous decision in a similar case, dismissed the Revenue's application, stating that the jurisdictional issue could only be addressed during the substantive appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 116419 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-11-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 26-10-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 11-03-2020
• Other Referred Cases: Rupendra Kumar Varshney and Richa Varshney
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Penny stocks; Bogus
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘F’, NEW DELHI BEFORE SH. PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER MA No.117/Del/2020 (Arising out of ITA No.6837/Del/2019) (Assessment Year : 2015-16) ITO Ward – 2(5) Ghaziabad PAN No. AKKPM 6751 A Vs. Vikas Mittal 25, Mohalla, Mahajanan, Sarna Vali Gali, Murad Nagar, Ghaziabad-06 (APPELLANT) (RESPONDENT) Assessee by Shri Akhilesh Kumar, Adv. Shri Vipin Garg, Adv. Revenue by Shri Manu Chaurasiya, Sr. D.R. Date of hearing: 27.10.2023 Date of Pronouncement: 02.11.2023 ORDER PER PRADIP KUMAR KEDIA, AM : The captioned Misc. Application under section 254(2) of the Act has been directed at the instance of the Revenue seeking to recall the appellate order of the ITAT in ITA No.6837/Del/2019 dated 30.09.2019. 2. As per Misc. Application dated 11.03.2020, the grievance of the Revenue are twofold; (i) the case of the assessee falls under the exception as prescribed in Board’s Circular 23/2019 dated 06.09.2019 as it is a case of penny stocks involving bogus Long Term Capital Gain (LTCG) and (ii) the first appellate order passed by the CIT(A) in itself is without authority and without jurisdiction and thus non-est. 3. In response, the Learned Counsel for the assessee vehemently opposed the Misc. Application and contended that the first appellate order has been passed in a consolidated MA No.117/Del/2020 ITO Vs. Vikas Mittal 2 manner involving multiple assessee including assessee herein as well as other assessee such as Rupendra Kumar Varshney and Richa Varshney. The Learned Counsel thereafter, pointed out that similar Misc. Application of Revenue arose in case of Rupendra Kumar Varshney and Richa Varshney wherein the Tribunal vide order dated 16.09.2022 (MA No.104/Del/2020 in ITA No.6826/Del/2019 and MA No.118/Del/2020 in ITA No.6824/Del/2020) has, in the identical facts, dismissed the Misc. Application of the Revenue in the case of such other assessee named above, arising from the same order of the CIT(A). The learned Counsel thus contends that the maintainability of MA in identical circumstances have already been examined by the Co-ordinate Bench and thus requires to be followed. 4. In consonance with the view taken in MA Nos.104 & 118/Del/2020 order dated 16.09.2022 in identical fact situation and arising in same CIT(A) order, we see no reason to depart from the view taken therein. We thus see no merit in the Misc. Application. We also see no merit in the other aspect of the plea that first appellate order passed being without jurisdiction, the MA would lie on such inherent jurisdictional defect. This is for the simple reason that such aspect can be examined only at the time of hearing of the substantive appeal of the Revenue. The Misc. Application being found unsustainable at the threshold, such aspect cannot be examined in such misc. application. 5. In the result, Misc. Application of the Revenue is dismissed. Order pronounced in the open court on 02.11.2023 Sd/- Sd/- (ASTHA CHANDRA) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 02.11.2023 Priti Yadav, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI