Deputy Commissioner of Income-tax, Circle - 3, Pune V. M/s M.B. Gharpuray Engineers & Constructions (Regd.), Pune

MA 122/PUN/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4380 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-01-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-11-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 21-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 254(2)

Judgement Text

1 M.A.No.122/PUN./2023 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE “A” BENCH : PUNE BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER M.A.No.122/PUN./2023 Arising out of I.T.A.No.1655/PUN./2017 - Assessment Year 2011-2012 The DCIT, Circle-3, Pune – 411 004 vs. M/s. M.B. Gharpure Engineers & Contractors (Regd.), 838, Shivajinagar, Pune – 411 004. PAN AACFM4994R (Applicant) (Respondent) For Revenue : Shri Ramnath P. Murkunde For Assessee : Smt. Deepa Khare Date of Hearing : 05.01.2024 Date of Pronouncement : 08.01.2024 ORDER PER SATBEER SINGH GODARA, J.M. : This Revenue’s miscellaneous application M.A.No.122/PUN./2023 filed u/s.254(2) of the of the Income Tax Act, 1961 (in short "the Act"), seeks to recall/rectify our order dated 27.07.2022 dismissing Revenue’s main appeal ITA.No.1655/PUN./2017. Heard both the parties. Case file perused. 2. Learned DR vehemently argued during the course of hearing that our impugned order has erred in law and on facts in treating the main appeal’s sole substantive ground of bogus 2 M.A.No.122/PUN./2023 purchases to the tune of Rs.50,93,109/- as not maintainable in light of the CBDT’s circular no.17 of 2019 dated 08.08.2019 as under : “5. We have given our thoughtful consideration to the foregoing rivals and find no merit in the Revenue's arguments. It emerges from the records that Assessing Officer had disallowed the latter head VAT refundables amounting to Rs.1,54,73,923/- out of which the assessee; prima facie, appears to have paid Rs.50,93,109/- (supra). We make it clear that the CIT(A) has held the same to be allowable on actual payment basis u/s.435' of the Act. And the department has not pleaded any ground rebutting the same to this effect. The impugned correct figure therefore comes to Rs.1,03,80,814 only which fails to satisfy the tax effect of Rs.50 lakhs even if added to the first and former issue involving disallowance of bogus purchases Rs.27,35,429/- in entirety. We accordingly dismiss the Revenue’s instant appeal ITA.No.1655/PUN/17 as involving lower than the prescribed tax effect as per the CBDT circular applicable on pending cases as well. It is further made clear the Revenue shall be very much at liberty to recall our instant findings as per law subject to the condition that the learned Assessing Officer shall ensure to verify* the 3 M.A.No.122/PUN./2023 forgoing VAT payment of Rs.50,93,109/- as per law. Ordered accordingly.” 2.1. Mr. Murkunde next vehemently argued in light of Revenue’s pleadings that it’s above stated sole substantive ground of bogus hawala purchases based on information received from sales tax authorities deserves to be decided on merits as under : 4 M.A.No.122/PUN./2023 5 M.A.No.122/PUN./2023 3. We find no merit in the Revenue’s instant pleadings as this tribunal’s recent coordinate bench’s order in similar miscellaneous application no.60/PUN/2019 dt. 14-01-2020 has already rejected the very pleadings as under : “2. We have heard the rival submissions and scanned through the relevant material on record. Having found that the tax effect in the instant appeal referred to by the Revenue is less than the monetary limits of Rs.50.00 lakh, the Tribunal dismissed the appeal of Revenue by virtue of CBDT Circular No.17/2019 dated 08-08-2019 revising upward the monetary limit to Rs.50.00 lakh for filing of appeals by the Department in Income-tax Cases before various appellate forums. 6 M.A.No.122/PUN./2023 3. As regards the contention of the ld. DR that the appeal should not have been dismissed because the additions in the above case was made on the basis of information received from the Sales Tax Department, Govt. of Maharashtra about the assessee indulging in hawala transactions and hence covered in the exception clause of the Circular as referred to above, we find that such a contention has not been countenanced by the Pune Benches of the Tribunal in several cases including ITO vs. M/s Param Marketing (ITA No.1872/PUN/2019 dt.30-01- 2020) and ITO vs. Yusuf Gulmmohmmed Patel (ITA No.1852/PUN/2019 dt.30-01-2020). Not only that, even the Miscellaneous application filed u/s 254(2) on this issue has also been dismissed in DCIT vs. M/s Rang Rasayan (M.A.No.60/PUN/2019 dt. 14-01-2020). No contrary view has been brought to our notice on behalf of the Revenue. Respectfully following the above precedent, we are not inclined to accept the Miscellaneous application filed by the Revenue.” 4. There is no distinction on facts or law pointed out at the Revenue’s behest. We, therefore, adopt the above detailed reasoning mutatis mutandis to decline the Revenue’s instant miscellaneous application. Ordered accordingly. 7 M.A.No.122/PUN./2023 Order pronounced in the open Court on 08.01.2024. Sd/- Sd/- [DR. DIPAK P. RIPOTE] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 08 th January, 2024 VBP/- Copy to 1. The applicant 2. The respondent 3. The CIT(A) concerned 4. The CIT, Pune concerned 5. D.R. ITAT, Pune “A” Bench, Pune. 6. Guard File. //By Order// //True Copy // Assistant Registrar, ITAT, Pune Benches, Pune.