THE ITO, WARD - 2(2), Vijayawada V. Sri Vijayanagaram Srinivasarao, Vijayawada

MA 23/VIZ/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0634 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SATYANARAYANA RAJU
• Keywords: Tax effect
• Section: 143(3); 254(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM (THROUGH WEB - BASED VIDEO CONFERENCING PLATFORM) , . . , BEFORE SHRI N.K.CHOUDHRY, HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HONBLE ACCOUNTANT MEMBER M . A.NO. 2 3 /VIZ/20 19 (ARISING OUT OF I.T.A. NO. 222 /VIZ/201 3 ) ( / A SSESSMENT Y EAR : 20 09 - 10 ) INCOME TAX OFFICER WARD - 2(2) VIJAYAWADA VS. VIJAYANAGARAM SRINIVASA RAO D.NO.32 - 4 - 5, FLAT NO.101 ROYAL RESIDENCY ANJAMMA STREET MOGHALARAJPURAM VIJAYAWADA [PAN : AARPV7532R] ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI B.SATYANARAYANA RAJU, DR / RESPONDENT BY : SHRI C.SUBRAHMANYAM, AR / DATE OF HEARING : 12.02.2021 / DATE OF PRONOUNCEMENT : 17 .02.2021 / O R D E R P ER D.S.SUNDER SINGH , ACCOUNTANT MEMBER : IN THIS CASE, ASSESSMENT WAS COMPLETED U/S 143(3) ON TOTAL INCOME OF RS.35,12,330/ - , OUT OF WHICH, THE ASSESSING OFFICER (AO) MADE THE ADDITION OF RS.32,64,100/ - ON ACCOUNT OF BANK DEPOSITS AND T HE ASSESSEE WENT ON APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] AND THE 2 M .A. NO . 2 3 /VIZ/20 19 , A.Y.20 09 - 10 VIJAYANAGARAM SRINIVASA RAO, VIJAYAWADA LD.CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE. ON APPEAL THE ITAT DISMISSED THE APPEAL OF THE DEPARTMENT , SINCE , THE TAX EFFECT IN THIS CASE IS BELOW THE PRESCRIBED LIMIT AS PER CIRCULAR NO.03/2018 DATED 11.07.2018. AGAINST THE ORDER OF THIS TRIBUNAL, THE DEPARTMENT HAS FILED MISCELLANEOUS APPLICATION REQUESTING TO RECALL THE ORDER AS UNDER : 5 . THE DEPARTM ENT DID NOT ACCEPT THE ORDER OF L D.CIT ( APPEALS ) AND PREFERRED AN APPEAL BEFORE THE HON'BLE ITAT. CONSIDERING THE FACT THAT THE ASSESS EE HAD NEITHER APPEARED NOR FILED ANY INFORMATION DURING THE APPEAL . T HE HON'BLE ITAT, VIDE ORDER DATED 12.04.2017, REVERSED THE ORDER OF THE LD. CIT (APPEALS) AND UPHELD THE ORDER PASSED BY THE ASSESSING OFFICER. 6 . AGGRIEVED BY THE ABOVE ORDER OF THE HON'BLE ITAT, THE ASSESSEE FILED A MISC.PETITION TO RECALL THE ORDER PASSED BY THE HON'BLE TRIBUNAL. THE HON'BLE ITAT, VIDE ORDER DATED 25.01 2019, HELD THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS BELOW RS.20 L AKHS AND AS PER THE LATEST CBDT CIRCULAR NO.03/2018 DATED 11 / 0 7/ 2018, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. IN VIEW OF THE ABOVE, THE HON'BLE ITAT OPINED THAT THE APPEAL FILED BY THE DEPARTMENT IS NOT MAINTAIN ABLE AND ACCORDINGLY DISMISSED. 7 . THE REVENUE IS AGGRIEVED OF THE AFORESAID DISMISSAL OF IT S APPEAL ON TECHNICAL GROUNDS FOR THE REASONS RECORDED BELOW: 7 .1. AS IS EXPLICIT AND EVIDENT FROM THE ORDER OF THE HON'BLE ITAT / VSP CONTAINED IN ITS ORIGINAL ORDER IN ITA.NO.222/VIZ/2013 DATED 12:042017, THE HON'BLE ITAT, VSP REVERSED THE ORDER OF THE CIT(A), V J A AND ALLOWED THE REVENUE'S APPEAL NOT ON TECHNICAL GROUNDS PERTAINING TO THE ISSUE OF THE THRESHOLD MONETARY LIMITS PRESCRIBED BY THE CBDT; BUT ON CONSIDERA TION OF THE FACTUAL AND LEGAL POSITION PREVALENT IN THE INSTANT CASE, I.E., ON MERITS OF THE CASE. 7.2. IN SUCH A FACTUAL MATRIX, EVEN IF THE AFORESAID ORDER IS RE - CALLED, IT IS THE SUBMISSION OF THE REVENUE THAT THE ISSUE INVOLVED IN THE INSTANT CASE MA Y HAVE TO BE ADJUDICATED ON MERITS ONLY ON CONSIDERATION OF MY 3 M .A. NO . 2 3 /VIZ/20 19 , A.Y.20 09 - 10 VIJAYANAGARAM SRINIVASA RAO, VIJAYAWADA FRESH MATERIAL AND EVIDENCE BROUGHT TO THE NOTICE OF THE HON'BLE ITAT BY THE ASSESSEE. 7.3. FURTHER, THE REVISED MONETARY LIMIT OF RS.20,00,000/ - PRESCRIBED BY THE CBDT IN ITS LATEST CIRCULAR NO.3/2018, DTLL.07.2018 CAME INTO EFFECT AFTER PASSING THE AFORESAID ORDER OF THE HON'BLE ITAT, DT.12.04.2017, AND HENCE, THE CBDT'S CIRCULAR, DT.11.07.2018, MAY NOT APPLICABLE TO THE ASSESSEE'S CASE. 8. IN THE AFORESAID FACTUAL AND LEGAL BACKGROUND OF THE CASE, IT IS SUBMITTED THAT THERE CREPT AN ERROR WITHIN THE MEANING OF SEC . 254(2) OF THE ACT. IT IS ACCORDINGLY REQUESTED THAT THIS M.A. MAY KINDLY BE ENTERTAINED AND THE ISSUE INVOLVED IN THE INSTANT CASE, MAY KINDLY BE ADJUDICATED ON MERITS, SO AS TO BE IN CONFORMITY WITH THE PROVISIONS OF LAW. FOR KIND CONSIDERATION. DURING THE HEARING, THE LD.DR VEHEMENTLY SUPPORTED THE MISCELLANEOUS APPLICATION AND REQUESTED TO RECALL THE ORDER. 2. ON THE OTHER HAND, THE LD.AR SUBMITTED THAT AS ON THE DATE OF PASSING THE ORDER BY THE HONBLE ITAT, THE DIRECTIONS OF THE CBDT CIRCULAR NO.3/2018 DATED 11.07.2018 ARE IN FORCE AS PER WHICH THE APPEAL FILED BY THE DEPARTMENT IS NOT MAINTAINABLE, THEREFORE, ARGUED THAT THERE IS NO REASON TO INTERFERE WITH THE ORDER DA TED 25.01.2019, HENCE REQUESTED TO DISMISS THE MA FILED BY THE REVENUE. 3. WE HAVE HEARD BOTH THE PARTIES A ND GONE THROUGH THE CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. THERE IS NO DISPUTE THAT THE TAX EFFECT IN THIS CASE WAS LESS T HAN RS.20 LAKHS AND AS PER CIRCULAR 4 M .A. NO . 2 3 /VIZ/20 19 , A.Y.20 09 - 10 VIJAYANAGARAM SRINIVASA RAO, VIJAYAWADA NO.3/2018 DATED 11.07.2018, THE THRESHOLD LIMIT FOR FILING THE SECOND APPEAL IS MORE THAN RS.20 LAKHS. THE APPEAL IS NOT COVERED BY ANY OF THE EXCEPTIONS IN PARA NO.10 OF CBDT CIRCULAR NO.3/2018. DURING THE COURSE OF APPEAL HEARING ON 24.01.2019, THE LD.DR ALSO DID NOT RAISE ANY OBJECTION AS MENTIONED IN THE ITAT ORDER. IT IS ALSO CLARIFIED BY THE BOARD IN THE CITED CIRCULAR THAT THE LIMIT OF 20.00 LACS AND ABOVE WOULD BE APPLICABLE TO PENDING APPEALS ALSO . FOR THE S AKE OF CONVENIENCE WE EXTRACT RELEVANT PART OF THE CIRCULAR ( CIRCULAR NO.3/2018 [F.NO.279/MISC.142/2007 - ITJ (PT)], DATED 11 - 7 - 2018) WHICH READS AS UNDER: 13. THIS CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS OBJECTIONS /REFERENCES TO BE FILED HENCEFORTH IN SC/ HCS/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIVELY TO PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. THEREFORE, WE HOLD THAT THE APPEAL WAS RIGHTLY DISMISSED ON TAX EFFECT AND WE FIND NO MISTAKE IN THE ORDER OF THE ITAT DATED 25.01.2019, HENCE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 4 . IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED . 5 M .A. NO . 2 3 /VIZ/20 19 , A.Y.20 09 - 10 VIJAYANAGARAM SRINIVASA RAO, VIJAYAWADA ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH FEBRUARY, 2021. SD/ - SD/ - ( ) ( . . ) (N.K.CHOUDHRY) (D.S.SUNDER SINGH) / JUDICIAL MEMBER / ACCOUNTANT MEMBER DATED : 17 .02.2021 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO : - 1 . / THE ASSESSEE VIJAYANAGARAM SRINIVASA RAO, D.NO.32 - 4 - 5, FLAT NO.101, ROYAL RESIDENCY, ANJAMMA STREET, MOGHALARAJPURAM, VIJAYAWADA 2 . / THE REVENUE INCOME TAX OFFICER, WARD - 2(2), VIJAYAWADA 3. THE COMMISSIONER OF INCOME TAX , VIJAYAWADA 4. THE COMMISSIONER OF INCOME TAX (APPEALS), VI JAYAWADA 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM