ACIT(OSD), Noida V. Subhash Bhartia (HUF), Noida

MA 21/DEL/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3549 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 14-07-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 23-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Bogus

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘G’ NEW DELHI BEFORE SHRI G.S. PANNU, HON’BLE PRESIDENT AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A. No. 21/Del/2020 [Arising out of ITA No. 6761/Del/2018] Assessment Year: 2015-16 ACIT (OSD), Noida Vs. Sh. Subhash Bhatia (HUF), B069, Sector-14, Noida PAN :AAMHS8709D (Applicant) (Respondent) ORDER PER SAKTIJIT DEY, JM: Captioned application has been filed by the Revenue seeking recall of order dated 23.08.2019 passed in ITA No. 4430/Del/2018. 2. We have heard the parties and perused the materials on record. It is the case of the Revenue that, though, the appeal was dismissed due to low tax effect in terms with CBDT Circular No. 17 of 2019, dated 8 th August, 2019, however, subsequently, the CBDT has issued Circular No. 23 of 2019, dated 6 th September, 2019 vide Applicant by Sh. Om Prakash, Sr. DR Respondent by Mr. Akshit Goel, CA Date of hearing 15.07.2022 Date of pronouncement 15.07.2022 2 M.A. No.21/Del/2020 F. No. 279/Misc./M-93/2018-ITJ(Pt.) which carves out certain exceptions by stating that the appeals involving bogus long term and short term capital gain through penny stock would not be covered under the low tax effect circular and have to be decided on merits. 3. We have considered the plea of the Revenue. Undisputedly, Revenue’s appeal was disposed of by the Tribunal on 23.08.2019 taking note of CBDT Circular No. 17 of 2019, dated 8 th August, 2019. Whereas, on the date of disposal of appeal, CBDT Circular no. 23 of 2019, dated 6 th September, 2019 as well as Office Memorandum dated 16 th September, 2019 were not in existence. Therefore, the Tribunal could not have taken cognizance of the subsequent Circulars issued by the CBDT, which carves out certain exception to CBDT Circular no. 17 of 2019, dated 8 th August, 2019. For this very reason, there cannot be any mistake in order of the Tribunal due to non-consideration of the circulars, which were not in existence at the time of disposal of the appeal. Aforesaid view of ours is fortified by the decision of the Hon’ble Gujarat High Court in case of PCIT Vs. Denisha Rajendra Keshwani (2022) 134 taxmann.com 249 (Guj.). 3 M.A. No.21/Del/2020 4. Pertinently, in course of hearing, learned counsel appearing for the assessee submitted that, in the meanwhile, assessee had opted for settling the dispute arising in the appeal under the Direct Tax Vivad Se Vishwas Act, 2020 and accepting assessee’s declaration, the designated authority has issued Form 5 on 11 th January, 2022. Thus, he submitted, the dispute arising in the appeal of the Revenue has been settled. 5. Keeping in view the factual matrix discussed above, in our considered opinion, the present proceeding should be given a decent burial at this stage. Accordingly, the application is dismissed. 6. In the result, the miscellaneous application is dismissed. Order pronounced in the open court on 15 th July, 2022 Sd/- Sd/- (G.S. PANNU) (SAKTIJIT DEY) PRESIDENT JUDICIAL MEMBER Dated: 15 th July, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi