Assistant Commissioner of Income-tax, Nashik V. M/s. Pawar Patkar Construction Pvt. Ltd., Nashik

MA 16/PUN/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4994 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, J UDICIAL M EMBER M.A. NO. 16 /PUN/ 2020 ( ARISING OUT OF ITA NO. 867 /PUN/ 2016 ) / ASSESSMENT YEAR : 2009 - 10 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 2, NASHIK. .. /APPLICANT / V/S. M/S. PAWAR PATKAR CONSTRUCTION PVT. LTD. PLOT NO.43/A, SHIVNERI, MAHATMA NAGAR ROAD, A, OFF. TRIMBAK ROAD NASHIK - 422 007 PAN: AAIFP9352Q / RESPONDENT A SSESSEE BY : SHRI C.H. NANIWADEKAR REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 0 5.0 2 .2021 / DATE OF PRONOUNCEMENT : 08 .02 .2021 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE ARISING OUT OF ITA NO.867/PUN/2016 FOR ASSESSMENT YEAR 2009 - 10 U/S. 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 17.08.2018. 2 M A NO. 16 /PUN/20 20 A.Y. 2009 - 10 2. THE GRIEVANCE OF THE REVE NUE IN THE MISCELLANEOUS APPLICATION AS PER THE RELEVANT PARAS EXTRACTED AS FOLLOWS: 2. THE APPEAL FILED BY THE DEPARTMENT IN THE ABOVE CASE FOR THE AY 2009 - 10 HAS BEEN DISMISSED BY THE HONBLE TRIBUNAL RELYING ON THE CBDT CIRCULAR NO.3/2018 DATED 11.07. 2018 WITHOUT GOING INTO THE MERIT OF THE ISSUES RAISED IN THE APPEALS. 3. HOWEVER, THE CASE IS COVERED BY THE EXCEPTION (E) OF THE PARA 10 AS AMENDED VIDE BOARDS LETTER DATED 20.08.2018. IN THIS CASE THE ADDITION IS BASED ON THE INFORMATION RECEIVED FROM EXTERNAL SOURCES I.E. THE SALES TAX DEPARTMENT. 4. FURTHER, THE ASSESSEE HAD ACCEPTED IN PRINCIPLE THAT PURCHASES OF RS.50,29,206/ - ARE BOGUS AND THEREBY OFFERED FOR ADDITION OF 4% OF PURCHASES ON ACCOUNT OF BOGUS BILLS DEBITED TO THE ACCOUNT. ASSESSEES CONTENTION IS MENTIONED IN PARA 8.4 OF THE IMPUGNED ORDER OF THE CIT(A) DATED 12.02.2016. THEREFORE, IT IS REQUESTED TO PLEASE RECONSIDER THE MATTER IN THE LIGHT OF THE ABOVE DISCUSSION AND REQUESTED TO RE INSTITUTE OF APPEAL. 3 . THE LD. DR FOR THE REV ENUE SUBMITTED THAT THE INSTANT APPEAL IS COVERED BY THE EXCEPTION (E) OF THE PARA 10 AS AMENDED VIDE BOARDS LETTER DATED 20.08.2018 AND ADDITION IS BASED ON THE INFORMATION RECEIVED FROM EXTERNAL SOURCES I.E. THE SALES TAX DEPARTMENT. HENCE, LD. DR REQUE STED FOR RECONSIDER THE MATTER. 4. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE ISSUE RAISED IN THE MISCELLANEOUS APPLICATION IS FULLY COVERED BY THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN MA NO.01/PUN/2019 IN THE CASE OF DCIT VS. M/S. CHHABI ELE CTRICALS PVT. LTD. DATED 03.06.2019, COPY OF WHICH HAS ALSO BEEN BROUGHT ON RECORD. 5. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. WE HAVE ALSO CONSIDERED THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL (SUPRA.) ON WHICH THE LD. AR HA S PLACED RELIANCE WHEREIN RE - ASSESSMENT PROCEEDINGS IN THE CASE OF THE ASSESSEE WERE INITIATED ON THE BASIS OF INFORMATION RECEIVED 3 M A NO. 16 /PUN/20 20 A.Y. 2009 - 10 FROM SALES TAX DEPARTMENT, GOVT. OF MAHARASHTRA AND ON SIMILAR FACTS AND CIRCUMSTANCES, THE TRIBUNAL ON THE ISSUE HAS HELD A ND OBSERVED AS FOLLOWS: 4. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES. THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY REVENUE TO RECALL THE ORDER OF TRIBUNAL IN ITA NO.588/PUN/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 (E) 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 THE SAME READS AS UNDER: 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING ISSUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE T AX EFFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT : ( A ) XXXXXX ( B ) XXXXXX ( C ) XXXXXX ( D ) XXXXXX ( E ) WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRI/SFIO/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI). ( F ) XXXXXX CLAUSE (E) IN PARA 10 OF CBDT CIRCULAR SPECIFIES THAT THE CIRCULAR DOES NOT APPLY WHERE INFORMATION IS RECEIVED FROM ENFORCEMENT AGENCIES SUCH AS CBI, ED, DRI, SFIO, DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI) ETC. IT IS EVIDENT FROM CIRCULAR THAT THE ENFORCEMENT AGENCIES REFERRED ARE CENTRAL ENFORCEMENT AGENCIES. THERE IS NO MENTION OF ENFORCEMENT AGENCIES/DEPARTMENT OF THE STATE GOVERNMENT SUCH AS SALES TAX DEPARTMENT. 5. IN THE INSTANT CASE, RE - ASSESSMENT PROCEEDINGS WERE INITIATED ON THE BASIS OF INFORMATION RECEIVED FROM MAHARASHTRA STATE SALES TAX DEPARTMENT. THUS, WE ARE OF CONSIDERED VIEW THAT THE EXCEPTION M ENTIONED IN PARA 10 (E) OF THE CBDT CIRCULAR NO. 3 OF 2018 (SUPRA.) DOES NOT COVER INFORMATION RECEIVED FROM STATE SALES TAX DEPARTMENT. HENCE, THE MONETARY LIMIT AS FIXED BY CBDT TO FILE APPEALS BY THE DEPARTMENT WOULD APPLY IN THE FACTS OF THE PRESENT CA SE. WE DO NOT FIND ANY MERIT IN THE CONTENTIONS OF THE REVENUE. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE SEEKING RECALLING OF THE TRIBUNAL ORDER IS DISMISSED, ACCORDINGLY. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMI SSED. 4 M A NO. 16 /PUN/20 20 A.Y. 2009 - 10 THAT IN THE AFORESAID DECISION OF M A NO.01/PUN/2019 IN THE CASE OF DCIT VS. CHHABI ELECTRICALS PVT. LTD. (SUPRA) AT PARA 5, IT HAS BEEN CATEGORICALLY HELD THAT THE EXCEPTION MENTI ONED IN PARA 10(E) OF THE CBDT CIRCULAR NO.3 OF 2018 (SUPRA.) DOES NOT COVER INFORMATION RECEIVED FROM STATE SALES TAX DEPARTMEN T. HENCE, THE MONETARY LIMIT AS FIXED BY CBDT TO FILE APPEALS BY THE DEPARTMENT WOULD APPLY I N THE FACTS OF THE PRESENT CASE . SINCE ISSUES RAISED IN THE PRESENT MISCELLANEOUS APPLICATION IS IDENTICAL AS IN THE REFERRED CASE IN MA NO.01/PUN/2019, WE RESPECTFULLY FOLLOWING THE SAME PARITY OF REASONING OF THE TRIBUNAL (SUPRA.), DISMISS THE MISCELLANEOUS APPLICATION PREFERRED BY THE REVENUE. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRO NOUNCED ON 08 TH DAY OF FEBRUARY , 20 2 1 . SD/ - SD/ - INTURI RAMA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 08 TH FEBRUARY , 202 1 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL) - 2, NASHIK. 4. THE PR. CIT - 2, NASHIK. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. / BY ORDER, // TRUE C O PY // / PRIVATE SECRETARY , / ITAT, PUNE . 5 M A NO. 16 /PUN/20 20 A.Y. 2009 - 10 DATE 1 DRAFT DICTATED ON 05 . 02 .202 1 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 05 . 02 .202 1 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