The Dy. CIT Khandwa, Khandwa V. M/s. Rahul Agritech (P) Ltd., Burhanpur

MA 20/Ind/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4983 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-03-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 18-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Penny stocks
• Section: 50C; 254(2)

Judgement Text

MA No.20 of 2020 Rahul Agritech 1 आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING MA No.20/Ind/2020 Arising out of IT(SS)A No.136/Ind/2019 Assessment Year: 2011-12 DCIT-Khandwa बनाम/ Vs. M/s. Rahul Agritech Pvt. Ltd., Burhanpur (Appellant) (Respondent ) P.A.N. – AAECA 4445 J Revenue by Shri Amit Soni, Sr.DR Assessee by Shri Pankaj Mogra, AR Date of Hearing: 07.01.2022 Date of Pronouncement: 15.03.2022 आदेश / O R D E R PER MANISH BORAD, A.M: This Miscellaneous petition u/s 254(2) of the Act filed by the department pertaining to the A.Y. 2011-12 is directed against the order of I.T.A.T., Indore Bench, Indore dated 21.08.2019. 02. The department has pointed out that apparent mistake has occurred in the order of the Tribunal by submitting that the appeal as filed by the department falls under the criteria enumerated in para 10(c) of the CBDT MA No.20 of 2020 Rahul Agritech 2 Circular no. 23/2019. The Miscellaneous Application filed by the department reads as under:- “The AO has made addition of Rs. 17,68,055/- u/s 50C on account of difference between sale value and value adopted by the stamp valuing authority. Although the Hon’ble ITAT has dismissed the departmental appeal because the threshold monetary limit fixed by the board of Rs. 50 Lacs i.e. below the prescribed limit for filing the further appeal as per CBDT circular no. 23/2019 date 06.09.2019 but the case fall under the criteria enumerated in para 10(c) i.e. where revenue audit objection in the case has been accepted by the Department. The above referred circular. A miscellaneous application of being hereby filed with a request to the Hon’ble ITAT to reconsider the issues on merit.” 03. On going through the case records, we find that the department had taken the following grounds of appeal in the appeal filed by it bearing IT(SS)A No. 136/IND/2019 before the Tribunal against the order passed by the Ld CIT(A) on 28-03-2019 :- [1] Whether on the facts and circumstances of the case, the ld. CIT(A) was justified in holding that the properties sold were agriculture land and therefore, capital gain on transfer of the same is not taxable and the provisions section 50C of IT Act are also not applicable even though the assessee itself has offered long term capital gain on sale of such properties in the return of income filed. [2] Whether on the facts and circumstances of the case the ld. CIT(A) was justified in admitting additional evidences under Rule 46A of the IT Rules without affording reasonable opportunity to the AO to examine the evidence or documents produced by the appellant.” 04. During the course of hearing, ld. Sr. DR relied upon the contents narrated in the miscellaneous application. On the other hand, learned counsel MA No.20 of 2020 Rahul Agritech 3 for the assessee submitted that in the grounds of appeal taken by the department in its appeal, there was no mention that present appeal as filed by it falls under the exception to the CBDT Circular No 23/2019. Thus, there was no error in the order passed by the Tribunal on 21.08.2019. Further, learned counsel for the assessee also submitted that if the case falls under para 8(c) of the CBDT Circular No 21/2015, even then, appeal be filed on merit of the case and in the present case, the appeal filed by the department was filed mechanically and not on merit of the case. 5. We have considered the submissions of both the sides and perused the material available on record. We find from the perusal of the grounds of appeal filed in the departmental appeal as reproduced above that the Revenue did not mention the fact that as per CBDT circular no. 23/2019 dated 06.09.2019, the case falls under the criteria enumerated in para 10(c) i.e. where revenue audit objection in the case has been accepted by the Department. Further, we find that para 3 of the CBDT Circular No 5/2017 reads as under:- 06. On consideration of above, we find force in the contention of the learned counsel for the assessee that if the case falls under para 8(c) of the CBDT Circular No 21/2015, even then, appeal be filed on merit of the case and not mechanically. Further, we also find that as per the CBDT Circular no. 23/2019, as referred to in the ground of appeal, in a case where addition was made on account of bogus Long Term Capital gain/Short Term Capital Gain on MA No.20 of 2020 Rahul Agritech 4 penny stocks, in those cases appeal be filed by the departments irrespective of tax quantum involved. But, in the instant case, it is not so. 07. In view of the above, since the Revenue failed to mention of any audit objection at the time of filing of the departmental appeal and appeal was filed in mechanical manner and also the CBDT circular No.23/19 is not applicable, there is no reason for recalling of the order passed by the Tribunal. Hence, miscellaneous application filed by the Department stands dismissed. The order pronounced as per Rule 34 of ITAT Rules, 1963 on 15.03.2022. Sd/- Sd/- (MAHAVIR PRASAD) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER दनांक /Dated : 15.03.2022 !vyas! Copy to: The Appellant/Respondent/CIT concerned/CIT(A) concerned/ DR, ITAT, Indore/Guard file. By Order, Sr. Private Secretary, I.T.A.T., Indore