INCOME TAX OFFICER WARD-1, TARN TARAN V. Sh. Jaimal Singh, L/H. Sh. Prem Chand, Tarn Taran

MA 2/ASR/2021

AI Insights

The case revolves around a Miscellaneous Application filed by the revenue against an earlier ITAT order that dismissed their appeal due to the tax effect being below Rs. 50 lakhs, as per CBDT Circular No. 17/2019. The revenue contended that the actual tax effect was over Rs. 50 lakhs due to an addition of Rs. 2,02,31,146 made by the Assessing Officer, of which Rs. 1,65,73,150 was later deleted by the CIT(A). The ITAT initially dismissed the appeal without considering the actual tax effect. Upon the revenue's application for recall, the ITAT acknowledged the oversight and recalled the earlier order, allowing the appeal to proceed.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 115179 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 8 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-05-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-04-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 25-08-2020
• Other Referred Cases: M/s Perfect Nano Solar Pvt. Ltd., Mumbai M.A. No.78/Mum/2021
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Tax effect; Additional evidence; Tax effect
• Section: 250; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER ANDSH. ANIKESH BANERJEE, JUDICIAL MEMBER M.A. No. 2/Asr/2021 (In I.T.A.No. 82/Asr/2016) A.Y. 2008-09 ITO- Ward -1, Tarn Taran. (Appellant) Vs. Sh. Jaimal Singh,L/H Sh. Prem Chand, Tarn Taran. [PAN: DABPS8982R] (Respondent) Appellant by Sh. Vinamar Gupta, CA. Respondent by Sh. Ravinder Mittal, Sr. DR Date of Hearing 24.04.2023 Date of Pronouncement 18 .05.2023 ORDER Per Anikesh Banerjee, JM: The instant Miscellaneous Application (in brevity the MA) was filed by the revenue against the order of ITAT, Amritsar Bench, bearing ITA No. 82/Asr/2016 date of order 19.12.2019. The application was filed on 26.08.2020. Though, the application is filed in delay as per provision of section 254(2) of the Income Tax Act, 1961 (in brevity the Act). But the delay is condoned by the order of the Hon’ble Supreme Court in the case of Suo Motu Writ Petition (C) NO. 3 Of M.A. No.2/Asr/2021 (In I.T.A.No. 82/Asr/2016) 2 2020 date of order 10/01/2022 considering the Covid Pandemic. Accordingly, the delay for filing of the M.A. of the revenue is condoned. 2. Brief fact of the case is that the ITAT Amritsar Bench has passed the order and rejected the appeal of the revenue on the ground that the tax effect is below the 50 lacs by considering CBDT Circular No. 17/2019 dated 08.08.2019. But the Revenue had made an application through MA that during the impugned year the tax effect was more than 50 lacs for assessee. So, the mistake is apparent from the record and the order of the ITAT Amritsar Bench is prayed for recalled. Accordingly, the revenue filed an MA before us. 3. The ld. DR vehemently argued and first invited our attention in para no. 2 of order of the ITAT Amritsar Bench in ITA No.18/Asr/2016 page 2 to 3 of the order is extracted as below: “2. At the outset it is observed that tax effect involved in the appeal under consideration is not more than 50 lacs, hence the instant appeal is liable to be dismissed as not maintainable, in view of the latest CBDT Circular No. 17/2019, dated 08.08.2019 whereby the Revenue Department is precluded from filing the appeals(s) before appellate tribunal against the order (s) of CIT(A), in which the tax effect does not exceed Rs. 50,00,000/- as specified in the Circular and the CBDT Clarification dated 20th August 2019 whereby it is M.A. No.2/Asr/2021 (In I.T.A.No. 82/Asr/2016) 3 clarified that revised monetary limits so mentioned in the circular 17/2019 is applicable to all pending SLPs/Appeals/Cross Objections/References. 3. In the result, the appeal under consideration filed by the Revenue Department stands dismissed as withdrawn. 4. The liberty is granted to the Revenue Department to seek recall of the order in case, it found that the captioned appeals falls within the exception as prescribed in Circular No.03/2018 (supra) and/or having involved the tax effect more than Rs. 50 lacs. Cross Objections 5. We realize that grounds taken in Cross Objections are more or less in support of the order(s) of Ld. CIT(A), therefore, in our considered view on dismissal of appeal of the Revenue, the Cross Objections filed by the assesses are also liable to be dismissed as infructuous, hence, we dismissed the same. 6. In the result, the appeal filed by the Revenue Department stands dismissed as withdrawn and C.O. filed by the assessee also dismissed as infructuous.” 4. The ld. DR further invited our attention in application the relevant paragraph of the MA which is extracted as below: “2. In I.T.A. No.82/(ASR)/2016 dated 19.12.2019 of the learned I.T.A.T., the appeal of the Revenue has been dismissed as not M.A. No.2/Asr/2021 (In I.T.A.No. 82/Asr/2016) 4 maintainable holding that the tax effect involved in the appeal under consideration is not more than Rs. 50 lac. The learned ITAT in paragraph-4 of its order have however granted liberty to the Revenue to seek recall of its captioned order in this case if it is found that the captioned appeal falls within the exception as prescribed in Circular No.03/2018 (supra) and/or having involved the tax effect more than Rs.50 lac. 3. From the facts available on record, it is submitted that an addition of Rs. 2,02,31,146 was made in this case by the Assessing Officer on account of undisclosed sources of cash deposits, out of which an addition of Rs. 1,65,73,150 was deleted by the learned Commissioner of Income Tax(Appeals) for which the Revenue is in appeal before the learned ITAT vide captioned ITA(supra). The tax effect on this addition of Rs. 1,65,73,150 works out to Rs. 56,33,114. Since the tax effect in this case is Rs. 56,33,114/-, which is more than Rs. 50 lac. i.e it fulfills the condition precedent for filing appeal before the learned ITAT as per Circular No. 17/2019 dt. 08.08.2019. In view of these facts, it is prayed that I.T.A. No.82/(ASR)/2016 dated 19.12.2019 of the learned ITAT may be recalled and re-considered to adjudicate on the merits on the following grounds of appeal:- (i) That on the facts and the circumstances of the case, the learned CIT(A)-2, Amritsar erred in granting the relief of Rs. 1,65,73,150 (Rs. 1,61,43,719 + Rs. 4,29,431) by admitting additional evidence without M.A. No.2/Asr/2021 (In I.T.A.No. 82/Asr/2016) 5 giving a specific opportunity of being heard to the A.O. to rebut the same, which is in contravention of Rule 46A(3) of the Income Tax Rules, 1962. (ii) That on the facts and in the circumstances of the case, the learned CIT(A)-2, Amritsar erred in holding that the A.O. had wrongly mentioned the PAN of late Sh. Prem Chand instead of Sh. Jaimal Singh L/H and thereby given direction to the A.O. to mention the correct PAN of Sh. Jaimal Singh L/H on the revision order under section 250 of the Act giving effect to the appellate order. The learned CIT(A) failed to appreciate the fact that the return for the year under consideration was filed by the assessee before his death and PAN of the deceased assessee who has been assessed through his L/H Sh. Jaimal Singh has correctly been mentioned.” 5. The ld. AR vehemently argued and placed that this appeal is related with Cross Objection bearing C.O. No. 11/Asr/2016, so, the same should be revived and recalled with the main petition. The ld. AR relied on the order of the ITAT, Mumbai Bench in case of M/s Perfect Nano Solar Pvt. Ltd., Mumbai M.A. No.78/Mum/2021 date of order 15.11.2021. 6. We heard the rival submission and relied on the documents available in the record. In fact, as per the MA of the revenue the tax effect is more than 50 lacs. The revenue is eligible for the appeal before the bench. Accordingly, we accept the tax effect in this case as per CBDT Circular in relation to which this appeal M.A. No.2/Asr/2021 (In I.T.A.No. 82/Asr/2016) 6 claimed to be not maintainable is more than 50 lacs. Hence, there is a mistake apparent from the record in ITAT order. Therefore, in the interest of justice the same is recalled. Since, the assessee’s Cross Objection was also dismissed along with revenue appeal on the premises that the same is support of the order of the ld. CIT(A). The same also stands recalled. Hence the revenue appeal and Cross Objection stands recalled. The Registry is also directed to fix this case in normal course of hearing in situ no. 7. In the result, the Miscellaneous Application of the revenue bearing M.A. No. 02/Asr/2021is allowed. Order pronounced in the open court on 18.05.2023 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE ) Accountant Member Judicial Member Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order