ITO, Ward-17(1), New Delhi V. Momentum Technologies P.Ltd, New Delhi

MA 135/DEL/2022

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 1416 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 08-08-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 08-06-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OM PARKASH; PRAMITA M
• Assessee Lawyers: SANDEEP GOEL
• Keywords: Revised return; Peak credit; Onus to prove
• Section: 148; 143(3); 143(2); 254(2); 68; 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “E” BENCH: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SHRI M BALAGANESH, ACCOUNTANT MEMBER M.A.No.135/Del/2022 [In ITA No.5803/Del/2017] [Assessment Year : 2012-13] ITO, Ward-17(1), New Delhi. vs Momentum Technologies P.Ltd., B-21, Moti Nagar, New Delhi. PAN-AACCM6467C APPELLANT RESPONDENT Appellant by Shri Om Parkash, Sr.DR Respondent by Shri Sandeep Goel, Adv. Date of Hearing 09.08.2024 Date of Pronouncement 10.09.2024 ORDER PER KUL BHARAT, JM : By this Miscellaneous application, the Revenue is seeking rectification of the order dated 15.11.2021 passed by the Tribunal in ITA No.5803/Del/2017 for the Assessment Year 2012-13. 2. The present application filed by the Revenue is in the form of submissions. For the sake of clarity, the submissions are reproduced as under:- “The Original returned of income filed by the assessee on 30.09.2012 declaring income of Rs. 5,10,548/-. Further the revised return u/s 139(5) was filed by the assessee on 10.02.2013 declaring income of Rs. 15,50,213/- including commission income. However, the AO made an addition of Rs. 10,39,66,491/- and completed the assessment at an assessed income of Rs. 10,44,77,040/- u/s 68 on account of unexplained cash credit in the bank account of the assessee. The Ld CIT(A) vide order dated 31.07.2017 held that AO is not justified in making addition of entire Page | 2 cash deposit of Rs. 10,39,66,491/- in bank account of the assessee and directed the AO to make net addition of Rs. 53,67,296/-by applying the theory of peak balance. The peak balance was arrived at Rs. 70,00,000/- and the net addition was computed at Rs. 53,67,296/- by deducting amount of Rs. 16,32,704/- (already declared by assessee as his income) from the peak balance of Rs. 70,00,000/-. The Revenue filed appeal against the order of Ld. CIT (A) before Hon'ble ITAT on the following grounds: "1. Whether on the facts and circumstances of the case, the Ld. CIT(A) is legally justified in deleting addition of Rs. 10,39,66,491/- u/s 68 of the Income Tax Act, 1961 (the Act) on account of cash deposits in bank account even when the asssessee had failed to discharge its initial onus to prove the genuineness of source of cash deposited in the bank during the course of assessment proceedings even after providing sufficient opportunities to the asssessee? Appellant by Ms. Pramita M. Biswas, CIT DR Respondent by Sh. Kapil Goel, Adv Date of Hearing 30.09.2021 Date of Pronouncement 15.11.2021 2 ITA No.5803/Del/2017? 2. Whether on the facts and circumstances of the case, the Ld. CIT(A) is legally justified in deleting addition of Rs. 10,39,66,491/- on account of cash deposits in bank account by ignoring the provisions of section 68 of the Act in this regard and by ignoring the fact that the asssessee had failed to discharge its initial onus laid down u/s 68 of the Act? 3. Whether on the facts and circumstances of the case, the Ld. CIT(A) is legally justified in deleting addition of Rs. 10,39,66,491/- u/s 68 of the Act, 1961 on account of cash deposits in bank account made on the basis of credible information by accepting submission filed by the assessee during appellate proceedings even when the asssessee had not fulfilled conditions as laid down under Rule 46-A of the Income Tax Rule, 1962(the Rule) and no opportunity was provided to the Assessing Officer of being heard ?" Page | 3 The Hon'ble ITAT vide order dated 15.11.2021 in ITA No. 5803/DEL/2017 held that the revised return be accepted observing that neither the assessee nor the CIT(A) has held that the revised return filed by the assessee is not bonafide and is not on account of any error or omission in the return of income filed originally. In effect by order of Hon'ble ITAT the income is restored to Rs. 15,50,213/- which is the income declared by the assessee as per revised ITR filed for the relevant AY. Whereas the addition of Rs. 53,67,296/- upheld by the Ld. CIT(A) was never challenged in the appeal filed before the Hon'ble ITAT. Thus, the addition of Rs. 53,67,296/- stands deleted by the impugned order of Hon'ble ITAT despite the fact that the same was never be the subject matter of the appeal in ITA No. 5803/DEL/2017. Secondly, the Hon'ble ITAT in para 7(last para) observed that "the notice u/s 143(2)/148(1) was issued on 30.03.2013 whereas no notice u/s 148(1) was ever issued. Only notice u/s 143(2) was issued on 30.03.2013. This observation of the Hon'ble ITAT is not correct. There was no need of issuing notice u/s 148 of Income Tax Act as the case of assessee for AY 2012-13 was selected for regular assessment and notice u/s 143(2) was issued for said year within the prescribed time limit. Hence, the Hon'ble ITAT is also not correct in observing that "the revise return filed by the assessee has to be accepted which was done in earlier year i.e. AY 2011-12, the Ld. DR could not point out any distinguishing fact". The facts are clearly distinguishable to the extent that the assessment proceedings in AY 2011-12 were re-opened u/s 148 while the assessment proceedings in AY 2012-13 were regular assessment proceedings u/s 143(2)/143(3). In view of the above, it is prayed to kindly recall the order dated 15.11.2021 in ITA No.5803/DEL/2017 and adjudicate on the issues as discussed above. The Ld CCIT-04, Delhi has accorded his approval for filing of MA on these issues in this case.” 3. Ld. Sr. DR for the Revenue relying upon the submissions made in the application. Page | 4 4. On the other hand, Ld. Authorized Representative of the assessee [“AR”] opposed these submissions. Ld. AR for the assessee has also filed written note dated 16.01.2024. For the sake of clarity, the relevant contents of the written note are reproduced as under:- “Brief background of necessary /essential facts: it is respectfully pointed out from case records that a) "original" return of income with declared income of Rs 510,548 was filed u/s 139(1)on 30.09.2012 which stood "validly" revised u/s 139(5) on 10.02.2013 with declared income of Rs 15,50,213. (refer page 9 of asst. order u/s 143(3) dated 27.03.2015) b) impugned assessment u/s 143(3) vide order dated 27.03.2015 was framed with total income assessed at Rs 10,44,77,040 with addition of Rs 10,39,,66,491 to "returned" income (original return taken as basis) of Rs 510,548; notably "revised" return of income was totally "overlooked" and glossed over in computing total income in assessment order; e) in first appeal filed by assessee relevant ground (no.2) was taken that non consideration of revised return u/s 139(5) vitiates the subject assessment d) in common order of first appellate authority (Id CIT-A) u/s 250(6) of 1961 Act, for AY 2011-12 & 2012-13, in para 4.16 at page 5 it is mentioned that in subject asst., "valid" revised return filed by assessee stands ignored; e) after giving detailed/common findings that action of Ld AO in adding entire cash deposits is not sustainable, Ld CIT-A sustained lumpsum addition of Rs 70 lacs incl." peak" amount in AY 2012-2013 (15.04.2011) of Rs 63,29,851 with net addition of Rs 53,27,296 (para 4.20 of cit-a order) F) revenue came in appeal before hon'ble ITAT in both years (resp. ITA 5802/del/2017 (AY 11- 12) & 5803/DEL/2017 AY 12- 13); G) assessee/respondent filed detailed /common rule 27 application before hon'ble ITAT on legal /jurisdictional aspects (copy of rule 27 application for both AY's part of case records; served multiple times) h) in order dated 31.03.2021 hon'ble ITAT in ITA 5802/DEL/2021, allowed "legal" ground taken by assessee and also "confirmed" on merits the impugned order of ld CITA which is "common to Page | 5 both AY's"; i) in order dated 15.11.2021 (ITA 5803/DEL/2017), hon'ble ITAT has followed earlier year order, while dismissing the appeal of revenue, sustained "legal" objection of assessee on aspect of non consideration of valid revised return u/s 139(5) and has made earlier ITAT order as basis for the same; J) Notably earlier ITAT order has attained "finality" and is not subject of any further appeal before high court or rectification; k) only /selectively revenue has filed MA in present year (AY 12-13) without any "assail" to earlier ITAT order (AY 2011-2012) 1) in this background, when Id cit-a passed common order for both AY's and ITAT has principally sustained said "common" cit-a order on merits in revenue appeal for AY 2011-12 (ita 5802/del/2017) and also sustained assessee's legal/jurisdictional objection (raised under rule 27 of ITAT rules) that impugned assessment is flawed for non consideration of "valid" revised return (para 15 of ITAT order); which aspect also there in AY 2012-13, as while making impugned assessment, valid revised return filed in ignored in computing total income (also finding of ld cit-a in common order in para 4.16), then revenue filing instant "MA" is legally and factually untenable u/s 254(2) of 1961 Act. Humble Submissions: a) That revenue has fully accepted the Hon'ble ITAT order dated 31.03.2021 in AY 2011-2012 where Id CIT-A common order is sustained on merits and legal/jurisdictional objection of assessee is allowed and b) That assessee for both AY's has filed common rule 27 (ITAT rules) application before hon'ble ITAT with common ground that non consideration of revised return has vitiated the assessment in toto (based on uncontroverted factual finding of Id cita finding in para 4.16 of ld cit-a order) c) That it is not comprehensible from where revenue in instant "MA", has gathered that ITAT has though allowed assessee's submission on revised return aspect but has "reduced" the income determined by Id CIT-A as upheld in earlier ITAT order; d) That ITAT finding on stated revised return aspect in AY 2012-13 is not "new" and is merely an extension and continuation to earlier ITAT order (refer para 15 of ITAT Page | 6 order of AY 2011-12); so revenue instant MA is totally misconceived and legally not tenable. Humble prayer: present /revenue MA may please be dismissed being legally/factually unsustainable.” 5. We have heard both the parties and perused the material available on record. From the contents of the application so filed by the Revenue and the submissions made therein, we find merit in the contention of Ld.AR that the Revenue is infact under the garb of rectification of the order, is seeking review of the order which is beyond the mandate of law as conferred u/s 254 of the Act. We therefore, decline to entertain the plea taken by the Revenue. The conscious decision taken by the Tribunal on the issue, cannot be reconsidered. The scope of section 254(2) of the Act, is limited to the mistakes apparent from record. If the plea of Ld. Sr. DR for the Revenue is accepted then in each case, the provision of section 254(2) of the Act would be applicable. It would further pave way for unsettling, the settled dispute. There is a clear distinction between the mistake apparent from record and the review of the order. The former would certainly operate in a narrow field. The Miscellaneous Application filed by the Revenue is accordingly, dismissed. 6. In the result, the Miscellaneous application of the Revenue is dismissed. Order pronounced in the open Court on 10 th September, 2024. Sd/- Sd/- (M BALAGANESH) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER * Amit Kumar * Page | 7 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI