DCIT, CC-4(2), MUMBAI V. Mr. YOGENDRA KUMAR GOUTI, MUMBAI

MA 205/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5573 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 20-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect

Judgement Text

MA NO 2 05/MUM/2020 IN ITA NO.2576/MUM/2019 ASSESSMENT YEAR: 2008 - 09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'D' BENCH, MUMBAI [CORAM: JUSTICE P.P. BHATT (PRESIDENT), AND PRAMOD KUMAR (VICE PRESIDENT)] MA NO . 2 05/MUM/2020 IN ITA NO.2576/MUM/2019 ASSESSMENT YEAR: 2008 - 09 DEPUTY COMMISSIONER OF INCOME TAX - CC 4(2) .APPLICANT MUMBAI. VS. MR. YOGENDRA KUMAR GOUTI RESPONDENT 4 TH FLOOR, 80/82, DHANJI STREET, MUMBAI 400004. [PAN: AECPG3594B] APPEARANCES BY SU N IL DESHPANDE FOR THE APPLICANT NONE FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: : JULY 13, 2021 DATE OF PRO NOUNCEMENT OF ORDER : S E P T E M B E R 0 2 , 2021 ORDER PER BENCH: 1. BY OF THIS MISCELLANEOUS APPLICATION, THE APPLICANT ASSESSING OFFICERS SEEKS RECALL OF THE ORDER DATED 2 1 ST AUGUST 2019, SUMMARILY DISMISSING THE DEPARTMENTAL APPEAL AS ON ACCOUNT OF LOW TAX EFFECT ON THE FOLLOWING GROUNDS: - (I) THE SCRUTINY OF THE ASSESSEE'S CASE FOR A.Y. 2008 - 09 WAS COMPLETED U/S.143(3) R.W.S, 147 DATED 18.03.2016 BY MAKING AN ADDITION OF RS.1,25,00,000/ - ON ACC OUNT OF UNSECURED LOANS RECEIVED FROM M/S ANUBBUTI SUPPLIERS PVT. LTD. THE INFORMATION WAS RECEIVED FROM DY, DIRECTOR OF INCOME TAX (INV.), UNIT - 1(2), MUMBAI WHO RECEIVED THAT INFORMATION FROM DIT(INV.), KOLKATA. (II) UPON APPEAL, THE LD.CIT(A) DELETED THE ADDITION OF AMOUNT OF RS.1,25,00,000/ - IN RESPECT OF UNSECURED LOAN TAKEN FROM M/S ANUBHUTI SUPPLIERS PVT. LTD. MA NO 2 05/MUM/2020 IN ITA NO.2576/MUM/2019 ASSESSMENT YEAR: 2008 - 09 PAGE 2 OF 3 (III) AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENUE FILED APPEAL TO THE ITAT CHALLENGING THE CIT(A)S DIRECTION TO DELETE THE ADDITION OF RS.1,25,00,000/ - . (IV) THE HONBLE ITAT WITHOUT GOING INTO THE MERIT OF THE ISSUES RAISED IN THIS APPEAL, DISMISSED THE APPEAL AS WITHDRAWN/ NOT PRESSED BY APPLYING CBDT CIRCULAR DATED 08.08.2019 READ WITH CIRCULAR DATED 11.07.2018. (V) IT IS ALSO PERTINENT TO REFER TO PARA 5 OF THE ITATS ORDER DATED 10.07.2019 WHICH IS REPRODUCED AS UNDER: - '5. BEFORE PARTING, WE CLARIFY THAT IF ON A LETTER DATE, THE REVENUE FINDS THAT THE TAX. EFFECT IN DISPUTE IN ANY OF THE CAPTIONED APPEALS I S MORE THAN THE LIMIT PRESCRIBED IN THE CIRCULAR DATED 08.08.209 (SUPRA), OR IT IS PROTECTED BY ANY OF THE EXCEPTIONS PROVIDED IN PARA 10 OF THE CBDT CIRCULAR LL07.2QL8(SUPRA), IT SHALL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THE ORDER AND REI NSTITUTION OF THE APPEAL FOR ADJUDICATION ON MERITS. THE TRIBUNAL SHALL CONSIDER SUCH APPLICATIONS, IF ANY, AS PER THE EXTANT LAW. ' (VII) THE HON'BLE ITAT PASSED THIS ORDER WITHOUT APPRECIATING THE CBDT CIRCULAR NO, 3/2018 DATED 11 TH JULY, 2018 WHICH WAS FURTHER AMENDED ON 20.08.2018 AND EXCEPTION CLAUSE 10(E) ADDED, WHICH IS REPRODUCED AS UNDER: - '.... WHERE ADDITION IS BASED ON INFORMATION RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES SUCH AS CBI/ED/DRJ/S FIQ/DIRECTORATE GENERAL OF GST INTELLIGENCE (DGC1), ' 3. FROM THE CHRONOLOGY OF THE FACTS DISCUSSED ABOVE, IT IS CLEAR THAT THE ITAT HAS DISMISSED THE APPEAL OF TILE DEPARTMENT WHEREIN IT CHALLENGED THE ORDER OF THE LD. CIT(A) DELETING THE ADDITION OF RS .1,25,00,000/ - . THUS, THE HON R BLE ITA.T HAS DISMISSED THE REVENUE'S APPEAL WITHOUT GOING INTO THE MERITS OF THE CASE. 6. NOWHERE IN THE ORDER OF THE HON'BLE ITAT, IS THERE ANY DISCUSSION FOR DELETING THE ADDITION OF RS.1,25,00,000/ - . HOWEVER, AS CAN BE S EEN FROM PARA 5 OF ORDER DATED 21.08.2019, THE HON'BLE ITAT HAS MENTIONED THAT THE REVENUE SHALL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THE ORDER AND REINSTITUTION OF THE APPEAL FOR ADJUDICATION ON MERITS. 2. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 3. WE FIND THAT EVEN GOING BY THE STATEMENT MADE BY THE ASSESSING OFFICER IN THE PRESENT MISCELLANEOUS APPLICATION THE CONDITIONS WERE MADE ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING. THE CASE OF THE APPLICANT IS THAT SINCE THE INFORMATION RECEIVED FROM THE INVESTIGATION WING THE CASE WILL BE COVERED THE EXEMPTION UNDER CLAUSE 10 (E) OF CBDT CIRCULAR DATED 11.07.2018 READ WITH CIRCULAR DATED 20.08.2018. HOWEVER WHAT HAS CLEARLY BEEN OVERLOOKED IS THAT CLAUSE 10(E) COMES INTO PLAY ONLY WHEN THE INFORMATION IS RECEIVED FROM EXTERNAL SOURCES IN THE NATURE OF LAW ENFORCEMENT AGENCIES. SINCE, IN THE MA NO 2 05/MUM/2020 IN ITA NO.2576/MUM/2019 ASSESSMENT YEAR: 2008 - 09 PAGE 3 OF 3 PRES ENT CASE, THE INFORMATION IS RECEIVED FROM AN INTERNAL AGENCY I.E., INVESTIGATION WING, CLAUSE 10(E), IN OUR CONSIDERED VIEW, IS NOT ATTRACTED. IN VIEW OF THE ABOVE DISCUSSION, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE DEEM IT FIT AND PROPER TO REJE CT THE MISCELLANEOUS APPLICATION. WE ORDER, ACCORDINGLY. 4. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 0 2 N D DAY OF S E P T E M B E R , 202 1. S D / - S D / - JUSTICE P.P. BHATT PRAMOD K UMAR (PRESIDENT) (VICE PRESIDENT) MUMBAI, DATED THE 0 2 N D S E P T E M B E R , 2021 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI