DY CIT CC 6(4) , MUMBAI V. SMT. DEVAL D THAKKAR [NOW AS SMT DEVAL E ANTHONY], MUMBAI

MA 187/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2668 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 22-09-2022
• Assessment Year: 1999-2000
• Appeal Filed On: 05-07-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Tax effect
• Section: 147; 132; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER, AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. no.187 & 188/Mum./2022 In ITA No.974 & 968/Mum./2020 (Assessment Year : 1999–2000 & 2004–05) Dy. Commissioner of Income Tax Central Circle–6(4), Mumbai ................ Applicant v/s Smt. Deval D. Thakkar (Now as Smt. Deval E. Anthony) 12/22B, Acropolis Malabar Hills Mumbai 400 006 PAN – AACPT8999F ................Respondent Assessee by : Shri Dilip J. Thakkar Revenue by : Shri Manoj Kumar Sinha Date of Hearing – 23/09/2022 Date of Order – 27/09/2022 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The present Miscellaneous Applications have been filed by the Revenue seeking recall of the common order dated 08/09/2021, passed under section 254(1) of the Act by the Co–ordinate Bench of the Tribunal in appeals being ITAs no.974 & 968/Mum./2020, for the assessment year 1999–2000 and 2004–05, respectively. Smt. Deval D. Thakkar M.A. no.187 & 188/Mum./2022 Page | 2 2. In these Miscellaneous Applications, it has been submitted that the Co– ordinate Bench of the Tribunal, vide aforesaid common order, dismissed the appeals filed by the Revenue on the basis that tax effect on the disputed amount is below the monetary limit prescribed by Circular no.17 of 2019, dated 08/08/2019, issued by the CBDT. It is further submitted that the Co– ordinate Bench granted liberty to the Revenue to seek restoration of these appeals in case it is proved that either the tax effect is more than Rs.50 lakh, or the case falls under any of the exceptions provided in the said Circular. 3. During the course of hearing, the learned D.R. submitted that the Revenue’s appeals are covered under the exception no.10(d) enumerated in the amendment dated 20/08/2018, to CBDT Circular no.3 of 2018. The learned D.R. further submitted that the additions relate to the undisclosed foreign income / undisclosed foreign assets / undisclosed foreign bank account of the assessee. 4. On the other hand, the learned A.R., at the outset submitted that the present Miscellaneous Applications are barred by limitation. On merits, learned A.R. fairly agreed that both the appeals of the Revenue falls under the aforesaid exception provided in CBDT Circular. 5. We have considered the rival submissions and perused the material available on record. We find that in the present case, the common order was passed by the Co-ordinate Bench of the Tribunal on 08/09/2021. Thus, as per the provisions of section 254(2) of the Act, the Miscellaneous Application was Smt. Deval D. Thakkar M.A. no.187 & 188/Mum./2022 Page | 3 required to be filed within six months from the end of the month in which the order was passed. However, the Revenue filed the present Miscellaneous Applications on 06/07/2022. We find that the Hon'ble Supreme Court, vide order dated 10/01/2022, passed in M.A. no.21 of 2022, in M.A. no.665 of 2021, in Suo–Motu Writ Petition (Civil) no.3 of 2020, directed that the period from 15/03/2020 till 28/02/2022, shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial and quasi judicial proceedings. As part of the limitation period for filing the present Miscellaneous Applications was falling within the aforesaid time-period, in view of the order passed by the Hon’ble Supreme Court, the same shall be excluded till 28/02/2022 and thus, we are of the considered view that there is no delay in filing the present Miscellaneous Applications and we proceed to decide the same on merits. 6. We find that the assessment in assessee’s case was re–opened for both the assessment years i.e., 1999–2000 and 2004–05 on the basis of search and seizure action conducted under section 132 of the Act at the premises of Shri Dilip J. Thakkar, wherein certain material was seized from which payment to assessee in foreign currency came to the knowledge of the Department. Further, certain information regarding Bank account outside India was also came to the knowledge of the Department. Accordingly, additions were made in the hands of the assessee vide assessment orders passed under section 143(3) r/w section 147 of the Act. Thus, we find that the appeals filed by the Revenue falls under the aforesaid exception provided in Para–10(d) of the Smt. Deval D. Thakkar M.A. no.187 & 188/Mum./2022 Page | 4 amendment to CBDT Circular no.3 of 2018, dated 20/08/2018. Accordingly, we recall the common order dated 08/09/2021, passed under section 254(1) in appeals being ITAs no.974 & 968/Mum./2020, for the assessment year 1999– 2000 and 2004–05, respectively. Consequently, the Registry is directed to fix the appeals before the Co–ordinate Bench in due course for hearing on merits. Issue notices for intimating date of hearing to the parties accordingly. 7. In the result, Miscellaneous Applications by the Revenue are allowed. Order pronounced in the open Court on 27/09/2022 Sd/- OM PRAKASH KANT ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 27/09/2022 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai