A,C.I T ,CHANDRAPUR CIRCLE, Chandrapur V. M/S SONY DISTRBUTORS PVT. LTD, Chandrapur

MA 13/NAG/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8230 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 13-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AGNESH P THOMAS
• Assessee Lawyers: ABHAY AGARWAL
• Keywords: Audit objection; Tax effect
• Section: 13; 12; 2

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL BENCH, NAGPUR (AT E - COURT, PUNE) BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY , JM M .A. NO S . 12 & 13 / NAG /20 18 (ARISING OUT OF ITA NO S . 397 & 396 /NAG /20 16 ) / ASSESSMENT YEAR : 2008 - 09 THE ASSISTANT COMMISSIONER OF INCOME TAX, CHANDRAPUR CIRCLE, CHANDRAPUR. .. /APPLICANT / V/S. M/S. SONY DISTRIBUTORS PVT. LTD. NEAR JATPURA GATE, MAIN ROAD, CHANDRAPUR, PIN - 442 401. PAN: AAICS0980Q .. / RESPONDENT A SSESSEE BY : SHRI ABHAY AGARWAL REVENUE BY : SMT. AGNESH P. THOMAS. / DATE OF HEARING : 17 .01.2020 / DATE OF PRONOUNCEMENT : 22 .01.2020 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THESE MISCELLANEOUS APPLICATION S HAS BEEN FILED BY THE REVENUE U/S.254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WITH A PRAYER TO RECALL THE ORDER OF TRIBUNAL DATED 13.07.2018 IN ITA NO.396 & 397/NAG/2016. 2 M A NO S . 12 & 13 /NAG /20 1 8 A.Y. 2008 - 09 2. THE LD. DR SUBMITTED THAT THE TRIBUNAL VIDE ORDER DATED 13.07.2018 HAS DISMISSED THE APPEAL OF REVENUE IN ITA NOS.396 & 397/NAG/2016 ON GROUND OF LOW TAX EFFECT. THE LD. DR FURTHER SUBMITTED THAT IN THIS CASE SURVEY WAS CONDUCTED U/S.133A OF THE ACT ON 09.01.2009 DURING WHICH IT WAS FOUND THAT THE STOCK W AS SHORT BY RS.54,25,897/ - AND DURING ASSESSMENT U/S.143(3) OF THE ACT, THE PROFIT ON THIS UNACCOUNTED SALES WAS WORKED OUT @12% AT RS.6,51,107/ - AND ADDED TO THE TOTAL INCOME. THE LD. DR ALSO SUBMITTED THAT FOR ASSESSMENT YEAR 2008 - 09, THE REVENUE AUDIT P ARTY RAISED OBJECTION AND POINTED OUT THAT DURING ASSESSMENT THE ASSESSING OFFICER HAD TAKEN INTO ACCOUNT ONLY THE PROFIT ELEMENT, BUT LEFT OUT THE COST OF UNDISCLOSED SALES. SINCE, THE SALE IS UNDISCLOSED THE ENTIRE AMOUNT OF RS.54,25,897/ - PLUS RS.6,51,1 07/ - AMOUNTING TO RS.60,77,004/ - SHOULD HAVE BEEN TAXED U/S.69 OF THE ACT. THUS, THE CASE OF ASSESSEE FALLS WITHIN THE EXCEPTION SPECIFIED AT PARA 10( C ) OF THE CBDT CIRCULAR NO. 3 OF 2018 DATED 11.07.2018 AND FURTHER AMENDED BY CBDT LETTER F.NO 279/MISE.14 2/2007 - ITJ( PT) DATED 20.08.2018. AS PER AMENDED PARA 10 CLAUSE (C) OF CBDT CIRCULAR NO.3 OF 2018 DATED 11.07.2018 , IT IS STATED A DVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED I S LESS THAN TH E MONETARY LIMITS SPECIFIED IN P ARA 3 ABOVE OR THERE IS NO TAX E FFECT: (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT , THE APPEAL OF REVENUE FALLS WITHIN THE EXCEPTION. THUS, OUTSIDE THE PARAMETERS OF MONETARY LIMIT FIXED FOR FILING APPEALS BY DEPARTMENT. 3. ON THE OTHER HAND, THE LD. AR OF ASSESSEE SUBMITTED THAT THE CBDT CIRCULAR SPECIFIES THE MONETARY LIMITS FOR FI LING APPEAL BY REVENUE AND IN THE PRESENT APPEAL TAX EFFECT IS LESS THAN THE LIMIT FIXED BY CBDT AND THE INSTANT CASE DOES NOT FALL WITHIN THE EXCEPTIONS MENTIONED IN PARA 10 OF THE SAID CIRCULAR. 3 M A NO S . 12 & 13 /NAG /20 1 8 A.Y. 2008 - 09 4. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL C ONTENTIONS . WE HAVE ALSO PERUSED THE ORDER OF TRIBUNAL DATED 13.07.2018 WHEREIN THE TRIBUNAL IN A CONSOLIDATE MANNER HAS DISMISSED ITA NOS.396 & 397/NAG/2016 AND OTHERS ON ACCOUNT OF LOW TAX EFFECT. THE MISCELLANEOUS APPLICATION S HAS BEEN FILED BY REVENUE TO RECALL THE ORDER OF TRIBUNAL IN ITA NO S . 396 & 397 / NAG /2016 (SUPRA.) ON THE GROUND THAT CBDT CIRCULAR NO.3 OF 2018 DATED 11.07.2018 DOES NOT APPLY IN THE INSTANT CASE AS IT IS COVERED UNDER EXCEPTION ( C ) MENTIONED IN PARA 10 OF THE CBDT CIRCULAR AS AMENDED BY BOARD LETTER F NO 279/MISE.142/2007 - ITJ(PT) DATED 20.08.2018. BEFORE PROCEEDING FURTHER, IT WOULD BE RELEVANT TO REPRODUCE THE RELEVANT CLAUSE ON WHICH THE DEPARTMENT IS RELYING FOR RECALLING THE ORDER OF TRIBUNAL AND T HE SAME READS AS UNDER: 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT : ( A ) XXXXXX ( B ) XXXXX X ( C ) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR ( D ) XXXXXX ( E ) XXXXXX ( F ) XXXXXX CLAUSE (C ) IN PARA 10 OF CBDT CIRCULAR SPECIFIES THAT ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN P ARA 3 ABOVE OR THERE IS NO TAX EFFECT : (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. 5. IN THE INSTANT CASE, WE FIND, THE REVENUE AUDIT PARTY RAISED OBJECTION AND POINTED OUT THAT DURING ASSESSMENT THE ASSESSING OFFICER HAD TAKEN INTO 4 M A NO S . 12 & 13 /NAG /20 1 8 A.Y. 2008 - 09 ACCOUNT ONLY THE PROFIT ELEMENT, BUT LEFT OUT THE COST OF UNDI SCLOSED SALES WHICH HAS BEEN ACCEPTED BY THE DEPARTMENT. THEREFORE, WE FIND MERIT IN THE CONTENTIONS OF THE REVENUE. THEREFORE, IN OUR CONSIDERED VIEW, T HE MISTAKE IS APPARENT FROM RECORD, HENCE, NEEDS RECTIFICATION. ACCORDINGLY, THE ORDER DATED 13.07.2018 PASSED BY THE TRIBUNAL ONLY IN RESPECT OF ITA NO S.396 & 397 /NAG/201 6 IS HEREBY RECALLED AND THE APPEAL OF THE ASSESSEE IS RESTORED TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO LIST THE APPEAL S FOR FRESH HEARING ON 05.02.2020 AFTER ISSUING NOTICE OF HEARING TO BOTH THE SIDES. 6 . IN THE RESULT, MISCELLANEOUS APPLICATION S FILED BY THE REVENUE ARE ALLOWED . ORDER PRO NOUNCED ON 22 ND DAY OF JANUARY, 2020. SD/ - SD/ - D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 22 ND JANUARY, 2020. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 1, NAGPUR. 4. THE CIT, NAGPUR. 5 . , , / DR, ITAT, NAGPUR. 6. / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE . 5 M A NO S . 12 & 13 /NAG /20 1 8 A.Y. 2008 - 09 DATE 1 DRAFT DICTATED ON 2 0.01.2020 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 2 1 .01.2020 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER